Introduction
ONC Lawyers successfully quashed a conviction in a Court of Final Appeal (“CFA”) case for an appellant charged with conspiracy to defraud for providing prison visiting services. The CFA interpreted the meaning of “friend” in a broad approach in the context of visitors of prisoners on remand awaiting trial (“PATs”) and considered that the appellants might have believed that they were visiting the prisoners as “friends”. As such, it did not involve dishonesty and there was no evidence of conspiracy, and the conviction was quashed.
Background
In HKSAR v Wan Thomas and Guan Qiaoyong (FACC Nos. 6 and 7 of 2017), the 1st defendant had started a business which offered to make visits (including to hand over daily necessities and food) to PATs on behalf of family and friends. The 2nd defendant was an employee of the 1st defendant. The two defendants (“Appellants”) visited PATs as “friends” visitors. They were subsequently convicted of conspiracy to defraud officers of the Correctional Services Department (“CSD”) in Lai Chi Kok Reception Centre (“LCKRC”) by dishonestly and falsely representing to CSD officers that each of them was a friend of a PAT at LCKRC, thereby inducing the CSD officers to grant them permission to visit the PATs.
The Law
The governance and management of prison facilities are governed by the Prison Rules (Cap. 234A) which were made pursuant to section 25 of the Prisons Ordinance (Cap. 234).
Rule 48 reads:
“No persons, other than the relatives and friends of a prisoner, shall be allowed to visit him except by special authority. Such visits by relatives and friends shall, subject to such restrictions as may be imposed for the maintenance of discipline and order in the prison and for the prevention of crime, be allowed in the manner following …”
“Relatives” and “friends” are not defined in the Prisons Ordinance or the Prison Rules.
Further, Rule 203 reads:
“(1) Every prisoner awaiting trial shall, subject to the order of the Superintendent [of LCKRC], be permitted to be visited by one visitor, or if the circumstances permit, by two at the same time, for a quarter of an hour on any week day, during such hour as may from time to time be appointed….
Rulings in the Lower Court
On 13 September 2013, the defendants were convicted and imposed with community service orders before the magistrate. At trial, it had been argued that since all the prisoners visited were PATs not prisoners, the more general provision contained in Rule 203 should apply. This rule does not impose any restriction on visitors to be “relatives” or “friends” of the PATs.
The Magistrate found that Rule 203 should be read subject to Rule 48 and hence “friends” for the purposes of the Prison Rules meant “people who know and are acquainted with one another” – personal friends. At appeal, the Court of Appeal (“CA”) examined Rules 48 and 203, specifically the meaning of “friends” in the context of Rule 203, and its constitutionality.
The CA upheld the Magistrate’s finding that the restrictions on categories of visitors in Rule 48 applied to Rule 203, holding that if the legislature intended “visitors” in the context of Rule 203 to bear a more relaxed meaning to that in Rule 48, it would have been provided expressly. The CA further rejected arguments that Rule 203 was incompatible with the Hong Kong Bill of Rights Ordinance (Cap. 383). The defendants appealed to the CFA.
Court of Final Appeal
The questions for the CFA are:
- on a proper construction, what is the meaning of “visitors” in the context of the Prison Rules, and;
- if the meaning of “visitors” bears the same meaning as “personal friend”, is the Prison Rules compatible with articles 6(2)(a) and 14 of the Hong Kong Bill of Rights?
The CFA held that Rules 48 and 203 are not inconsistent. Rule 48, which only allows “relatives and friends” of a prisoner to visit him, must also apply to PATs. Therefore, it is clear that only “relatives and friends” are able to visit persons in remand, whether general prisoners or PATs. However, CFA concluded that the word “friends” should receive a wider definition to include persons such as the Appellants.
For PATs, the meaning of “friends” shall be examined by reference to the purposes for which visits to PATs are made. The most important purpose of any visit to PATs is contact with persons outside the prison and the provision of moral and material support. Further, PATs are entitled to a more liberal regime in that they can procure for themselves personal food, clothing, newspapers and other means of occupation. These entitlements are of no practical benefit if procurement is severely hindered by the Rules.
CFA’s Decision
The CFA considered that, as well as personal acquaintances, “friends” of such a PAT can also include a person: (a) who has been requested to visit the prisoner, either directly by the prisoner himself or indirectly through a relative or personal acquaintance of the prisoner; (b) who wishes to visit the prisoner in order to provide him with some moral or material benefit consistent with the statutory purposes of visits to that category of prisoner; and (c) by whom the prisoner is willing to be visited. If those conditions are satisfied, the visitor should be regarded as a “friend”.
Although the CFA thought it was unnecessary to consider the constitutional arguments, given the conclusions as to the proper construction of “friends”, since the Appellants faced a serious charge involving dishonesty, the CFA found it appropriate to address them briefly. The CFA thought the evidence fell short of establishing necessary elements of the charge in two respects.
First, the evidence did not prove the element of dishonesty, which was fundamental to the alleged conspiracy to defraud. The courts below failed to consider whether the Appellants honestly believed the misrepresentation to be true in the sense in which they understood it. It is entirely possible that the Appellants might have believed that they were “friends” of the PATs and were not dishonest. Second, the evidence was insufficient to support the existence of a conspiracy agreement. The mere fact that the Appellants were from the same company does not infer they all agreed together that they would select the category “friend” to insert in the Visit Request Slips in order to induce the CSD officers to admit them as visitors.
Conclusion
The CFA’s clarification to the meaning of “friend” in the context of permitted visits to PATs is most welcomed as it is now clear visitors other than personal acquaintances of the PAT who satisfy the elements of a “friend” as set out in the CFA construction can visit PATs, representing both a victory for the Appellants and the PATs.
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This article is written by ONC Lawyers and was first published on ONC’s website.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.