A-384-77
Government of Hong Kong (Appellant)
(Respondent)
v.
Hon Kwing Shum (Respondent) (Applicant)
Court of Appeal, Pratte and Urie JJ. and MacKay
D.J.—Vancouver, January 20 and 24, 1978.
Prerogative writs — Prohibition — Application for extradi
tion pursuant to Fugitive Offenders Act — Respondent
accused of offence in Hong Kong — Penalty not described as
"hard labour" but Prison Rules requiring inmates to be
engaged in useful work — Whether or not Trial Division's
decision that "work" under Prison Rules not constituting
"hard labour" correct — Fugitive Offenders Act, R.S.C. 1970,
c. F-32, ss. 3, 12 — Prevention of Bribery Ordinance (Hong
Kong), s. 12 — Prison Rules (Hong Kong), s. 38.
This is an appeal from a judgment of the Trial Division
granting an application for a writ of prohibition directed
against a magistrate sitting under section 12 of the Fugitive
Offenders Act. According to the Trial Division, the magistrate
was without jurisdiction to determine whether the respondent
was to be committed to prison to await his return to Hong
Kong because the offence committed by respondent in that
country is not an offence to which the Act applies. The issue is
the correctness of the Trial Division's decision that, notwith
standing the requirement of Hong Kong's Prison Rules that
every prisoner engage in useful work, the offence with which
respondent is charged in Hong Kong is not punishable by
"imprisonment with hard labour" within the extended meaning
given that expression by section 3 of the Fugitive Offenders
Act.
Held, the appeal is allowed. The word "labour" is sufficiently
broad to allow compulsory work prescribed by the Prison Rules.
Section 3 of the Act deems imprisonment with hard labour to
be "any confinement in a prison combined with labour, by
whatever name it is called". What matters is whether that
punishment implies, in law, "confinement in a prison combined
with labour". If, in order to determine whether this condition
exists, one is not to have regard to the name by which the
punishment is designated in the enactment creating the offence,
one must of necessity consider what are, under the law of the
country in question, the legal effects of the imposition of the
punishment prescribed. The Prison Rules are clearly part of the
legislation defining the regime to which persons sentenced to
imprisonment are subjected.
Bailey v. Kelsey (1959) 100 C.L.R. 352, agreed with.
APPEAL.
COUNSEL:
M. M. de Weerdt, Q.C., for appellant.
H. A. D. Oliver for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Oliver, Waldock & Richardson, Vancouver,
for respondent.
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: This is an appeal from a judgment
of the Trial Division [see page 785 supra] granting
an application for a writ of prohibition directed
against a magistrate sitting under section 12 of the
Fugitive Offenders Act, R.S.C. 1970, c. F-32.
According to the Trial Division, the magistrate
was without jurisdiction to determine whether the
respondent was to be committed to prison to await
his return to Hong Kong because the offence
allegedly committed by the respondent in that
country is not an offence to which the Fugitive
Offenders Act applies.
The Fugitive Offenders Act provides that a
person who is accused of having committed an
offence to which the Act applies "in any part of
Her Majesty's Realms and Territories except
Canada" may, "if found in Canada, ... be
apprehended and returned, in the manner provided
by this Act, to the part of Her Majesty's Realms
and Territories from which he is a fugitive." The
Act applies to the offences described in section 3:
3. This Act applies to treason and to piracy, and to every
offence, whether called felony, misdemeanour, crime or by any
other name, that is, for the time being, punishable in the part of
Her Majesty's Realms and Territories in which it was commit
ted, either on indictment or information, by imprisonment with
hard labour for a term of twelve months or more, or by any
greater punishment; and, for the purposes of this section,
rigorous imprisonment, and any confinement in a prison com
bined with labour, by whatever name it is called, shall be
deemed to be imprisonment with hard labour.
The offence for which the appellant seeks to
obtain that the respondent be returned to Hong
Kong is the violation of section 10 of the Preven
tion of Bribery Ordinance of that Crown Colony.
Under section 12 of the Ordinance, that offence is
punishable by imprisonment for a period of more
than twelve months. The Ordinance does not refer
to hard labour. However, it is common ground
(a) that under section 25(1)(h) of the Prisons
Ordinance of Hong Kong "The Governor in
Council may make rules providing for ... the
classification, clothing, maintenance, employ
ment, discipline, instruction and correction of
the prisoners;" and
(b) that, under the authority of that provision,
the Governor in Council adopted a rule, known
as section 38 of the Prison Rules, which reads as
follows:
38. Every prisoner shall be required to engage in useful work
for not more than ten hours a day, of which so far as practi
cable at least eight hours shall be spent in associated or other
work outside the cells:
The sole issue in this appeal is the correctness of
the decision of the Trial Division that, notwith
standing the requirement of section 38 of the
Prison Rules that every prisoner shall engage in
useful work, the offence with which the respondent
is charged in Hong Kong is not punishable by
"imprisonment with hard labour" within the
extended meaning given to that expression by sec
tion 3 of the Fugitive Offenders Act.
The appellant's counsel's main argument was
founded on the authority of the unanimous judg
ment of the High Court of Australia in Bailey v.
Kelsey (1959) 100 C.L.R. 352, a decision which, I
must say, had not been brought to the attention of
the learned judge below. In that case, the Court
had to determine whether an offence committed in
England was "punishable by hard labour" within
the meaning of section 9 of the Fugitive Offenders
Act, 1881, 44 & 45 Vict., c. 69 (Imp.), a provision
in all respects identical with section 3 of our Act; it
held that the offence there in question, which was
punishable in England by mere imprisonment, was
nevertheless an offence punishable by imprison
ment with hard labour within the meaning of the
Fugitive Offenders Act because there existed in
England Prison Rules, similar to the Hong Kong
Prison Rules, requiring prisoners to engage in
useful work.
Counsel for the respondent took the position
that the Bailey case had been wrongly decided.
First, he argued that the requirements of the
Prison Rules cannot be taken into consideration in
order to determine the nature of the punishment
prescribed for the offence here in question. He said
that those rules are purely administrative and that
the Trial Division rightly held that their require
ment that inmates engage in useful work "is not
part and parcel of the punishment of imprison
ment". According to counsel, in determining how
an offence is punishable, regard should be had, not
to the many administrative rules that may regulate
the daily life of the inmates of penal institutions,
but merely to the punishment prescribed by the
enactment that creates the offence.
Counsel for the respondent also argued that,
even if the Prison Rules were taken into consider
ation in the determination of the punishment of
the offence, the appeal would still have to be
dismissed because, in his view, the Prison Rules
impose the obligation to do some "work", not to do
any "labour". Therefore, according to counsel, it
cannot be said that the offence here in question is
punishable by "confinement in a prison combined
with labour".
I may as well say immediately that this last
argument appears to me to be devoid of merit. The
meaning of the word "labour" is, in my view,
sufficiently broad to apply to the compulsory work
prescribed by the Prison Rules.
As to the respondent's first argument, it must, in
my opinion, also be rejected. Section 3 of the Act
deems to be imprisonment with hard labour "any
confinement in a prison combined with labour, by
whatever name it is called". The name by which a
punishment is described in the enactment creating
an offence is therefore not important. What mat
ters is whether that punishment implies, in law,
"confinement in a prison combined with labour".
If, in order to determine whether this is so, one is
not to have regard to the name by which the
punishment is designated in the enactment creat
ing the offence,—and that is clearly what section 3
says—one must of necessity consider, in order to
make that determination, what are, under the law
of the country in question, the legal effects of the
imposition of the punishment prescribed. In the
present case, in order to know what are the legal
effects of a sentence of imprisonment in Hong
Kong, one must have regard to the legislation of
that Colony defining the regime to which are
subjected persons who have been sentenced to
imprisonment. The Prison Rules are clearly part of
that legislation, and I fail to see any reason why
they should be ignored.
For those reasons, I would allow the appeal with
costs; I would set aside the decision of the Trial
Division and dismiss with costs the respondent's
application for a writ of prohibition.
* * *
MACKAY D.J. concurred.
* * *
The following are the reasons for judgment
delivered orally in English by
URIE J.: I have had the advantage of reading
the reasons for judgment of my brother Pratte. In
expressing my concurrence with his conclusion
that the appeal must be allowed, I only wish to add
a few words in explanation for my so doing.
I may first say that I have concluded that I must
agree with him only after careful deliberation and
considerable hesitancy. The submissions of counsel
for the respondent are accurately and concisely
summarized by Pratte J. Those, coupled with the
careful reasoning of the Judge of first instance, I
found to be very persuasive and in accord with my
original view of the matter. However, the learned
Judge in formulating his reasons did not have, as
we did have, the assistance of the judgment of the
High Court of Australia in Bailey v. Kelsey (1959)
100 C.L.R. 352 which had not been cited to him.
Any judgment of that distinguished Court is at
all times one to which any other Court should
accord great consideration. This is particularly
true when the judgment deals with a statute and
regulations which, as here, in all material respects
are identical with those being considered by the
other Court. Furthermore, when the statutes and
regulations being considered by each Court were
enacted to facilitate inter Commonwealth rela
tions, it is my view that in the interests of uniform
ity of interpretation throughout the Common
wealth the earlier judgment of the Australian
Court should be followed. It is for this reason then
that I have concluded that the decision in Bailey v.
Kelsey should apply and I would therefore allow
the appeal and dispose of the judgment below in
the manner contemplated by Pratte J.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.