HKSAR v Woo Wing See Phyllis [2026] 4 HKC 894, [2026] HKCFA 19 (Steven Kwan)
Steven Kwan, Yvonne Leung and Larissa Wong represented the appellant in HKSAR v Woo Wing See Phyllis [2026] 4 HKC 894, [2026] HKCFA 19.
The appellant was convicted after trial of the offence of carrying an unauthorized article out of a prison, contrary to s 18(1) of the Prisons Ordinance (Cap 234). She was an assistant solicitor of a solicitor’s firm acting for C, who was detained at Lai Chi Kok Reception Centre. C wished to make a complaint to the Ombudsman of Hong Kong. A blank complaint form was issued to C. The Correctional Services Department (CSD) officer who gave C the form told C that he should notify CSD staff to conduct a security check of the form after filling it out and that C should not mail it himself. The Office of the Ombudsman subsequently received by post C’s complaint form. CCTV records showed that during the appellant’s interview with C, C handed his completed complaint form to the appellant. The appellant carried the same out of the prison without security check conducted by CSD staff, and mailed the same to the Ombudsman. The appellant’s appeal against conviction to the Court of First Instance was dismissed ([2026] 1 HKC 661; [2025] HKCFI 1667). She obtained leave to appeal to the Court of Final Appeal for the question that for the purpose of s 18(1) of the Prisons Ordinance, was a letter from a prisoner to the Ombudsman an article authorized by the Prison Rules (Cap 234A) to be carried out of a prison without further authorization from the Commissioner of Correctional Services (Commissioner). The crux of the appellant’s argument was that the words ‘the superintendent shall permit a prisoner to write and send a letter’ in r 47(4) of the Prison Rules constituted the authority of the Commissioner under the Prison Rules to carry out a letter to, in this case, the Ombudsman.
Held, unanimously dismissing the appeal, that:
Per Fok PJ (Cheung CJ, Ribeiro and Lam PJJ and Gummow NPJ agreeing)
(1) Section 18 of the Prisons Ordinance (Cap 234) was particularly concerned with the introduction and carrying out of unauthorised articles into and out of prisons. From the perspective of safety, good order and discipline, it was important to have strict control of items brought into and out of penal institutions (para 30).
(2) The appellant’s reliance on r 47 of the Prison Rules (Cap 234A) was misplaced. Section 18 of the Prisons Ordinance addressed the person who introduced or carried an article into or out of a prison. Properly construed, r 47(4) was a rule focusing solely on what a prisoner may do and how it was done, and was not concerned with a third party carrying anything out of a prison. The meaning of the words ‘send a letter’ in r 47(4) referred to posting by mail, and it was straining the meaning of that phrase to interpret it as meaning to give the letter to another person to carry it out of the prison and for that person then to post it. That a prisoner may ‘send’ a letter at public expense if it was to a specified person provided no support that the Prison Rules authorized any person to carry such a letter out of a prison without the CSD subjecting it to the usual screening applied to outgoing items (paras 31-38).
[The above is excerpted from the headnote to the report in HKC.]
