Top-court backing for prison-visitor proxies

Top News | Amy Nip May 15, 2018
The Court of Final Appeal has quashed the convictions of two people who offered prison-visiting services to family and friends of prisoners on remand.

Thomas Wan founded a company that offered the services, in which staff visit the inmates on behalf of their family and friends, buy items for delivery - such as newspapers, magazines and books - and deliver meals and convey messages.

Wan and a worker, Guan Qiaoyong, were sentenced to community service in 2013 for conspiracy to defraud. The lower courts said between 2011 and 2012 they deceived officers from the Correctional Services Department by claiming they were friends of inmates remanded at Lai Chi Kok Reception Centre.

But a five-judge panel of the Court of Final Appeal overturned their convictions yesterday. In the written judgment, Justice Joseph Paul Fok said the appeal concerned the regime under the prison rules for visits to prisoners on remand awaiting trial. It raised questions of whether a prisoner's friends are limited only to those who are personal acquaintances.

Visitors are required to complete a visit request slip, on which they must specify their relationship with the prisoner. There are only two categories - "relative" and "friend."

The lower courts concluded that a friend of a prisoner could not mean a stranger. But Fok wrote that a wider definition should be given to the word "friend" to include people like the appellants.

"It is easy to envisage situations in which relatives and close personal friends will be unable to visit a prisoner awaiting trial," he said. "In those circumstances, if [say a] disabled grandmother of a prisoner awaiting trial wanted to deliver some food or convey a personal message of support it would seem odd if [she] could not send her own friend to deliver that food or convey that message."

Fok added that the meaning of the word "friend" was by no means clear and settled. It was possible that the appellants believed that they were friends of those they visited. As a result, it was "heavy handed" to prosecute them for conspiracy to defraud.

The four other judges were Chief Justice Geoffrey Ma Tao-li, permanent judges Roberto Ribeiro and Robert Tang Kwok-ching, and non-permanent judge Lawrence Antony Collins.

Eric Cheung Tat-ming, who represented Guan, believed the judgment should apply to both prisoners on remand and convicted inmates.

Prisoners on remand are allowed one visit a day, while convicted prisoners are allowed two visits a month.

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January 2019