Chan Kam Choi v Commissioner of Correctional Services

Court of Appeal
Civil Appeal No. 264 of 2015
Lam V-P, Cheung and Kwan JJA
18 August 2016

Commissioner of Correctional Services – decision dismissing applicant without retirement benefits following disciplinary proceedings – whether erred in treating previous cases of disciplinary proceedings as precedents for decision

X, an assistant officer in the Correctional Services Department (the “CSD”), was convicted of introducing 19 unauthorised articles into a prison (the “Articles”) and fined HK$1,000. In disciplinary proceedings against X, the CSD adopted its standing practice of considering preceding cases within the past 10 years in order to ensure that the level of punishment would be broadly consistent with the service-wide norm, while “having regard to all relevant factors”. The Commissioner of the CSD (the “Commissioner”) found that the Articles “might jeopardise the safe custody of prisoners” and so dismissed X without retirement benefits. On appeal by X, the Secretary for Civil Service upheld the Commissioner’s decision (the “Decisions”). X applied for judicial review of the Decisions arguing inter alia that the Commissioner was wrong to have treated previous cases of disciplinary proceedings as “precedents” for the Decisions (the “Precedents Ground”). The Judge dismissed X’s application and he now appealed.

Held, dismissing the application, that:

  • There was no merit in the Precedents Ground. The CSD’s stated reason for the standard practice of looking to other penalties in similar cases was entirely in accordance with the proper use of precedents in this context. The emphasis was on the appropriate level of punishment. The fact the precedent cases were not wholly or largely comparable to X’s case was beside the point, given the clear recognition by the decision-maker that such cases were not binding, but merely for comparison and reference.
  • Further, whether the unauthorised articles in the precedent cases were for the officers’ self-use was irrelevant. The CSD’s main concern was the potential security hazard if the articles had fallen into the hands of prisoners. The Judge took a perfectly sensible view of the increased security risk in light of the greater number of unauthorised articles and the regularity with which X brought them into prison.

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