Inmate seeking judicial review

Brian Hall says that prisoners should be allowed lawyers for disciplinary hearings

PUBLISHED : Saturday, 02 March, 2013, 12:00am
UPDATED : Saturday, 02 March, 2013, 3:52am

A prisoner is seeking court permission to lodge the first constitutional challenge to the prison service's policy of denying inmates a lawyer in disciplinary proceedings.

Lawyers for Brian Hall, serving 18 years for trafficking cocaine, said he had faced a total of 85 disciplinary hearings, and had requested legal representation for those he faced since 2009 but had never been allowed it.

Hall is seeking to mount a judicial review based on what he says is the Correctional Services Department's violation of article 11 of the Hong Kong Bill of Rights because his liberty and fundamental rights are at stake.

It follows a Court of Final Appeal ruling in 2009 that denying police officers legal representation in disciplinary proceedings was unconstitutional.

Gerard McCoy SC, for Hall, said the court in England found that when prisoners' liberty was in jeopardy, they must be given independent legal representation. "This case has not arisen before under Hong Kong law," he said. "The applicant has a right to a legal representative in each of the disciplinary hearings in which his liberty is in jeopardy."

Hall, known for his numerous lawsuits and ruled a "vexatious litigant" in 2008, is asking the Court of First Instance for permission to file the application for a judicial review.

McCoy said that without the forfeiture of remission as a result of the disciplinary proceedings, Hall would have been freed in 2009. Inmates can receive a reduction of as much as a third of their terms for good behaviour.

McCoy also complained that the same adjudicator was "recycled" in different disciplinary proceedings. He questioned how an adjudicator who had previously disbelieved his client could be allowed to handle another of his cases. The court heard that one auditor, a department superintendent, had made decisions under which Hall forefeited 280 days of remission.

The court heard that the department held some 4,000 disciplinary proceedings a year.

Madam Justice Mimmie Chan Mei-lan will hand down her written decision later.

Hall has filed more than 100 lawsuits since he was arrested in 1997, including complaints that he was denied a Swiss brand of body lotion, reggae tapes said to be part of his Rastafarian religion and his own hair trimmer.