Cheng v Chief Executive, Department of Corrections
[2020] NZHC 2158
•25 August 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-000062 CIV-2020-404-000075 CIV-2020-404-000292 CIV-2020-485-000104
[2020] NZHC 2158
BETWEEN THOMAS CHENG
Applicant
AND
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 17 August 2020 (via AVL) Appearances:
Applicant in person
SK Shaw for Respondent
Judgment:
25 August 2020
JUDGMENT OF DOWNS J
This judgment was delivered by me on Tuesday, 25 August 2020 at 10 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland. Copy to: Applicant.
CHENG v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2020] NZHC 2158 [25 August 2020]
The application
[1] Thomas Cheng is a sentenced prisoner who faces new, serious, criminal charges. Mr Cheng has filed 22 claims for judicial review.1 Many of the claims are also brought under the New Zealand Bill of Rights Act 1990. Mr Cheng applies for interim relief pending the claims’ determination. The judgment addresses this application.
Background
[2] Mr Cheng is a Singaporean national. His partner is in the Philippines; his father, Singapore.
[3] On 22 February 2018, Mr Cheng was given a 10-year, nine-month prison sentence for importing methamphetamine and supplying that drug. The importation charge was representative, meaning there was more than one importation. Judge W P Cathcart ordered Mr Cheng serve at least four years and three months.2 Until recently, Mr Cheng was at Auckland Prison. He is now at Auckland South Correctional Facility.3
[4] On 13 May 2019, 26 new criminal charges were laid against Mr Cheng. These allege Mr Cheng imported methamphetamine; dealt methamphetamine; dealt cannabis; committed aggravated robbery; and participated in an organised criminal enterprise. The alleged offending occurred between 1 March 2018 and 9 May 2019, so, while Mr Cheng was in prison. Mr Cheng has a lawyer on these charges. Trial is yet to be fixed.
[5]Mr Cheng’s civil claims are wide-ranging. Most involve challenges to the
manner of his incarceration. Some advance systemic challenges to the
1 Civil claims.
2 R v Cheng [2018] NZDC 3344.
3 Auckland South.
Department of Corrections’ management of prisons.4 Mr Cheng acts for himself in the civil claims, which I am managing.5
[6] This leaves a final strand of litigation. Mr Cheng, his father, and Mr Cheng’s stepmother are respondents or interested parties in a claim by the Commissioner of Police under the Criminal Proceeds (Recovery) Act 2009. The Commissioner alleges Mr Cheng has engaged in significant criminal activity, including tax evasion and money laundering. The Commissioner alleges Mr Cheng’s father and stepmother are complicit. Other Judges of this Court have made restraining orders over property allegedly involved.6
[7]Mr Cheng is polite and articulate. He appears highly intelligent.
The application
[8]Mr Cheng seeks interim orders requiring Corrections provide him:
(a)A “personal” laptop with an email system and web browser confined to approved websites, capable of playing surveillance footage; other footage; and electronically recorded interviews.7
(b)Weekly audio-visual connections to the Philippines and Singapore, so he may speak with his partner, father and other family members.
(c)International telephone calls at modest cost, again so Mr Cheng may speak with his partner, father and other family members. Mr Cheng also seeks an order requiring Corrections provide him “a personal phone and/or access to phones in … cells without unnecessary restrictions on the number of legal and personal recipient[s]”.8
4 Corrections.
5 The Crown has applied to strike out all the civil claims or, in the alternative, for substantial security. These applications were to be heard with this one. However, I concluded neither party was ready for these; see my Minute of 17 August 2020. I have not been given a new date. Auckland fixtures are affected by alert level 3 in response to the COVID-19 emergency.
6 For example, Commissioner of Police v Cheng [2019] NZHC 2888.
7 Laptop.
8 CIV-2020-404-000292 statement of claim, para 56.
(d)Unmonitored mail and email delivered in a timely manner.
[9] Mr Cheng has a computer in his cell. Mr Cheng says it is inadequate for the litigation, particularly the criminal case and criminal proceeds action. The computer does not recognise Word documents (it uses open-source software); does not play footage of the types mentioned earlier; and does not have a web browser. Mr Cheng argues he needs a laptop because:9
The applicant faces numerous criminal charges requiring access to evidential material that is not only substantial, but also sensitive in nature [due] to the circumstances of the case, because Corrections was involved in the investigations against the applicant.
The evidential material is substantial. There are hundreds of thousands of lines of text data alone. Over 300 hours of reviewable DVD data, and many more to come. There have been over 50 thousand pages of Disclosure produced so far, with more to come. The majority of the evidence is in the format of media files. The need for data manipulation is necessary for the preparation of defence.
Then there are the civil proceedings. The applicant has proceedings under the Criminal Proceeds (Recovery) Act which encompasses over 4 years’ worth of investigatory evidence in the hundreds of thousands of pages. Data manipulation is necessary. Then there are the litigations against the Crown and others in contemplation. Taken as a whole, the need for a personal computer is presented before the Court.
[10] Corrections has declined, thus far, to provide Mr Cheng a laptop. The Manager of Auckland Prison refused permission in a letter of 11 May 2020. The Manager at Auckland South does not appear to have made a formal decision. Mr Cheng said he had been told “no” by staff since being transferred to Auckland South, but he had not been given anything in writing. The evidence adduced by Corrections does not clearly address this point.
[11] Mr Cheng argues Corrections’ failure to provide a laptop infringes s 24(d) of the Bill of Rights Act. This provision affirms the right of everyone charged with an offence “adequate time and facilities to prepare a defence”. Mr Cheng argues the failure to provide a laptop also infringes reg 193 of the Corrections Regulations 2005. Regulation 193 requires a prison manager to provide a prisoner “with adequate facilities” in relation to “his or her defence” as far as “reasonably practicable in the
9 CIV-2020-404-000062 statement of claim paras 23–25.
circumstances”, and to “the extent consistent with the maintenance of safety and security requirements”. Mr Cheng also argues Corrections’ rules about computers in prison under s 45A of the Corrections Act 2004 are “ultra vires”. To elaborate, on 10 March 2016 the Chief Executive of Corrections amended the authorised property rules by removing personal computers from the “authorised electrical items” category.10
[12] Mr Cheng contends an audio-visual link to family abroad is the functional equivalent of a domestic prisoner having an in-person visitor. The latter is a minimum entitlement under the Corrections Act.11 Mr Cheng argues Corrections’ failure to provide a weekly audio-visual link abroad contravenes his freedoms of expression and association under ss 14 and 17 of the Bill of Rights Act, and freedom from discrimination under s 19 of that Act.12
[13]Mr Cheng has a telephone in his cell. Calls attract charges. Local calls cost
$1 (for up to 15 minutes); national calls cost 30 cents per minute; international calls
$1 per minute. Mr Cheng contends the rates are excessive. Mr Cheng also contends he has been wrongly prevented from calling five contacts. Like other phones in Auckland South, Mr Cheng’s permits 12 approved numbers: two for lawyers; the balance for private contacts. Mr Cheng says his family and friends have sent email “demonstrating concern and worry about my sudden hiatus in regular contact”.13
[14] Mr Cheng argues excessive rates and contact restrictions contravene his rights under the Bill of Rights Act, including freedoms of expression and association, and the right to be secure from unreasonable search and seizure.14
[15] Mr Cheng argues his mail and email is being unlawfully “targeted” by Corrections in contravention of s 21 of the Bill of Rights Act and other provisions of that Act. Mr Cheng says Corrections intercepted a bar of chocolate he attempted to send on 12 January 2020; deleted email sent to Mr Cheng with attachments; and
10 Hartley v Attorney-General [2019] NZHC 1727 at [25].
11 Corrections Act 2004, ss 69(1)(d) and 73.
12 Mr Cheng contends other provisions of the Act are also implicated: ss 21, 23(5), and 27(1).
13 Mr Cheng’s affidavit in support of interim relief.
14 New Zealand Bill of Rights Act 1990, ss 14, 17 and 21.
unreasonably delayed or withheld mail. Mr Cheng says intelligence officers employed by Corrections:
… are not GCSB intel officers. They do not possess “James Bond” kind of authority or powers. They are not prescribed with any special form of authority or warrant to act in a way that is outside of the Corrections Act. They may well be an Intel officer for the Department, but that does not give them additional powers. They have the same level of authority as any other Corrections Officer of that rank. I think perhaps at the end of the proceedings, this point, judicially reviewed, would provide the much needed clarity for the Emporer’s new clothes situation here.
[16]This précis is merely that.
Interim relief: principle
[17] Interim relief in a judicial review context is available when necessary to preserve an applicant’s position.15 Relief may be granted to place the applicant in a position he or she would have been but for the alleged illegality,16 but not to improve their position.17 Once the threshold for relief is met, the Court has a broad discretion referable to totality of circumstance.18 Interim relief against the Crown is confined to declaratory relief, albeit this may extend in an appropriate instance to a declaration requiring “positive action” by the Executive.19
Analysis
[18]Interim relief is inappropriate for five reasons.
[19] First, the statutory threshold is not crossed for the applications in relation to a laptop, weekly audio-visual visits, and unrestricted telephone calls. In relation to each, Mr Cheng seeks to improve his position, not preserve it. Mr Cheng contends his circumstances are analogous to Greer v Department of Corrections,20 in which Cooke J held Mr Greer’s application for a computer in prison met the threshold for interim relief. However, this was because Mr Greer had “previously been given access
15 Judicial Review Procedure Act 2016, s 15(1).
16 Greer v Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571.
17 Squid Fishery Management Company Ltd v Minister of Fisheries (2004) 17 PRNZ 97 (HC).
18 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA).
19 Judicial Review Procedure Act 2016, s 15(3) and Taylor v Department of Corrections
[2010] NZCA 371, [2011] 1 NZLR 112 at [22]–[27].
20 Greer v Department of Corrections, above n 16.
to computers while in prison, and he challenge[d] the relevant decisions which removed that access”.21 Mr Greer was doing no more than “asking to be put in the position that he was previously in, and the position he says that he would have been in but for the illegality he alleges”.22 Even then, Cooke J decided against interim relief.23
[20] Second, interim relief is not necessary to preserve Mr Cheng’s position until his judicial review claims are determined. Mr Cheng has adequate facilities to prepare his cases, at least for now. He has been placed in a large cell to house his many boxes of legal documents. Mr Cheng can use the computer in that cell to print documents, which are then brought to him. Mr Cheng has printed many. One evening, he printed 4,000.24
[21] Mr Cheng says this is inadequate, as he cannot search documents; for example, the 25,000 lines of text messages disclosed to him. Mr Cheng also says he cannot watch surveillance and other footage, nor electronically recorded interviews. I acknowledge these limitations. However, Mr Cheng has legal representation in the criminal case. It constitutes his most important litigation, and by some margin. Having chosen the benefit of legal representation in the criminal case, Mr Cheng may not seek relief as if he were self-represented.
[22] Mr Cheng is a foreign national in a New Zealand prison, hence, a long way from home. However, Mr Cheng is not prevented from exercising contact with those abroad. Mr Cheng has a telephone in his cell. He may use this when he likes, including to call family overseas, provided he pays. Corrections has not been deaf to Mr Cheng’s requests for audio-visual links. It attempted to facilitate an audio-visual “visit” and is contemplating the possibility of more.
[23] At Auckland Prison, staff attempted to video call, for Mr Cheng, a friend in the Philippines. This required special arrangements because of technological limitations in that prison. The system in Auckland Prison is closed. After making these
21 Greer v Department of Corrections, above n 16, at [26].
22 At [26].
23 At [39].
24 Affidavit of Aimee Hunter at para 9.
arrangements, the call could not be connected because of a problem at the Philippines end. Mr Cheng then asked to call his father. The request was not accommodated as the “usual security checks” had not been conducted.25 Consideration is being given to the possibility of video calls from Auckland South.
[24] I return to the topic of mail and email shortly. Importantly, Mr Cheng continues to receive both, albeit with some delay.
[25] Third, Mr Cheng’s related claims for judicial review do not appear strong.26 Laptops are no longer “authorised electrical items”. So, Mr Cheng does not have a right to a laptop in his cell. Whether legal facilities are adequate is ultimately a question of fact and degree. As observed, Mr Cheng has access to legal documents, a computer (albeit with limited functionality) and, through Corrections staff, a printer. Mr Cheng has legal representation in his most important case; this is not an instance of a self-represented criminal litigant.
[26] The “ultra vires” contention in relation to s 45A of the Corrections Act confronts broad empowering statutory language. Rights of freedom and association, and other rights affirmed by the Bill of Rights Act, are not absolute. Section 5 of the Act permits reasonable limitations prescribed by law as demonstrably justified in a free and democratic society. Context is all important—a prison. Unsurprisingly in such a setting, maintenance of public safety “is the paramount consideration in decisions about the management of persons under control or supervision”.27
[27] Mr Cheng’s claims about weekly audio-visual visits, unrestricted telephone calls, and mail and email confront similar hurdles. The Corrections Act provides for weekly private visits but says nothing about audio-visual links or “visits” by like technology. The omission appears deliberate, for both the Act and Corrections Regulations recognise the importance of visits by a consular representative to a prisoner who is not a New Zealand citizen.28 Moreover, the common law has long accepted offenders from foreign jurisdictions can find prison
25 Affidavit of Ian McNabb at para 10.
26 This is my preliminary view, not more.
27 Corrections Act, s 6(1)(a).
28 Corrections Act, s 69(1)(e); and Corrections Regulations 2005, reg 89(4) (as a statutory visitor).
here more difficult, which is why this is a mitigating factor potentially reducing the length of an otherwise appropriate prison term.29
[28] The Corrections Act expressly provides a prisoner “who makes an outgoing telephone call may be required to (a) meet the cost of the call or (b) pay a fee set by the Chief Executive”.30 The same Act empowers Corrections to monitor prisoners’ calls other than specified calls, for example, to a lawyer who acts for the prisoner, or a Member of Parliament.31 Just cause is not required for monitoring; rather, all prisoners must be told “on or reasonably promptly after being admitted to a prison … some of their telephone calls may be monitored”.32 Notice of this is required “near telephones that prisoners are authorised to use”;33 and “at the start of every outward prisoner call”.34 The Act also empowers the Chief Executive of Corrections to impose conditions on prisoners’ use of telephones.35 The Prison Operations Manual contains such conditions, including restrictions on the number and nature of contacts.36
[29] This leaves mail and email. Mr Cheng may send and receive “as much mail as [he] wishes”.37 However, like any other prisoner, mail to or from Mr Cheng may be opened.38 Mail to or from Mr Cheng may also be read to see whether it may be withheld.39 Broad grounds exists for withholding mail.40 Like telephone calls, just cause is not required for mail to be opened and read; again, prisoners must be told when being received at a prison, or reasonably promptly thereafter, their mail may be opened and read.41 Mail is defined as “any letter, package, parcel, or postcard sent or delivered to or by a prisoner”, so, these observations do not encompass email.42
29 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [163].
30 Corrections Act, s 77(6). This is subject to s 77(7), and in turn, regs 86 and 87 of the Corrections Regulations. Certain calls must be free, including to a consular representative of the country of which the prisoner is a citizen for prisoners other than New Zealand citizens.
31 Corrections Act, ss 112, 113 and 114.
32 Section 116(a).
33 Section 116(b).
34 Section 116(c).
35 Section 77(5).
36 Prison Operations Manual, C.02.
37 Corrections Act, ss 69(1)(h) and 76(1).
38 Section 106(1).
39 Sections 107 and 108.
40 Section 108. Some types of mail may not be opened or read, for example, mail between prisoners and their legal advisers; see s 108.
41 Section 110B. Mail is also regulated by Corrections Regulations.
42 Section 3(1).
[30] Email is not governed by the Act or Corrections Regulations; rather, the Prison Operations Manual. It provides:
C.07 Email to prisoners
1. The Department has implemented a process to permit prisoners to receive emails from friends and family. Unlike mail, email is not an entitlement for prisoners and the conditions under which the Department will receive emails and dispatch them to prisoners is subject to the conditions that the sender agrees to. Each prison has a prisoner email address (see Resource C.07.Res.01 Prison email addresses) to which friends and/or family may send emails. Prisoners cannot ‘reply’ to emails but there may be occasions when the prison needs to reply (e.g. when a prisoner has been released or transferred).
2. Each prison has an email ‘owner’ (the only person who can reply to incoming prisoner emails) and at least two staff able to access the email inbox who will access the prisoner email inbox each working day, read all incoming emails, print off those that meet the acceptance criteria (the ‘rules’) and place those emails in the internal mail bag for delivery to the prisoner. The incoming email is then deleted.
3. During ‘Induction’ prisoners should be advised of the opportunity to have emails sent to them and given a copy of C.07.Res.02 Information sheet for prisoners.
4. Prisoners must ‘invite’ friends and/or family to email them using C.07.Form.01 Information sheet for family and friends. This form must be sent out by normal mail and contain the prisoners name, PRN and the email address for the prison.
5. A prisoner, who has been identified as a named respondent in any Court order which prohibits contact between the applicant and the prisoner, will not permitted to invite the protected person to use the prisoner email service unless conditions of the Court order specifically allow contact via email.
6. Each incoming email is automatically replied to (see Resource C.007.Res.03 Automatic response for Eprisoner email address).
7. The following ‘rules’ apply to prisoner emails:
Prisoner electronic mail rules
1.You can only email prisoners who are at this prison.
2.Do not send any attachments or inserts with your email. You must not send graphics, photos, games, music files, web links, movies, spread sheets, word documents or inserts of any kind. Attachments will be stripped from the email automatically. Emails with inserts will be deleted and not passed onto the prisoner.
3.Emails are read and moderated by Corrections staff to ensure the security and good management of the prison. If your email contains
illegal or objectionable material it may be sent to our Corrections Intelligence team, or the Police to ensure the security and good management of the prison and the opportunity for you to send further emails may be denied.
4.Any unsuitable content will result in your email not being passed on to the prisoner. This includes illegal or objectionable material, profane, sexual or gang-related language and anything that threatens the security or management of the prison or any prisoner.
5.Coded messages will not be passed on.
6.If multiple emails (more than 2) containing illegal or unsuitable content are received then the senders address will be blocked and Corrections will no longer receive the emails. A notification will not be sent to the sender.
7.Sending emails to the prisoner is subject to review and may be stopped at any time.
Sending an email to this address means you have read, understood and acknowledge that the rules relating to the prisoner emails above will apply.
8.If a prisoner has transferred or been released and emails are still being sent to the prison, the email ‘owner’ will reply to the sender advising the prisoner is no longer at that prison. (Note, you may not advise that the prisoner has been released or where they may have been transferred to as this could be a breach of privacy). A prisoner who has transferred may send friends and/or family another invite from the new site.
9.If an email is received that has attachments or inserts, the email ‘owner’ may reply advising that the email has not been passed onto the prisoner and that any further breach of the ‘rules’ will result in the sender being blocked from sending any further emails.
10.Staff should read C.07.Res.04 Information sheet for staff and stakeholders.
11.Any email received may be translated into English to determine whether the email meets the ‘rules’ as detailed above.
[31] These rules appear to answer Mr Cheng’s email challenges, provided, of course, the rules are not ultra vires. Mr Cheng does not contend they are despite a multiplicity of other challenges.43
43 CIV-2020-404-000104 statement of claim contains five causes of action. Most rely on the Bill of Rights Act.
[32] Fourth—and unlike Corrections—I am poorly placed to assess security concerns in relation to Mr Cheng that may affect what is sought. Mr Cheng is not merely a sentenced prisoner; he also faces criminal charges concerning alleged offending within prison, offending said to have been facilitated by technology.
Moreover, concerns of this nature are typically for the Executive, not Courts.44
[33] Fifth, and as Ms Shaw for the Chief Executive observes, there are strong policy reasons against the proposed declarations, almost all of which require positive action by the Executive. The Court of Appeal captures these concerns this way:45
Such orders may not be able to be monitored, may require interaction between parties who are at arm’s length, and may involve inappropriate intervention by the court in decisions about the best use of scarce resources or the balancing of delicate priorities which are best left to the discretion of the responsible authorities.
[34] I summarise. The statutory threshold is not crossed in relation to most aspects. Interim relief is not necessary to preserve Mr Cheng’s position; merits do not appear strong; and relevant security concerns lie more in the Executive’s province. Policy tells against interim relief.
[35] A final observation. No obvious justification exists for apparently long delays in relation to the delivery of Mr Cheng’s mail and email. Each should be delivered within a reasonable time (assuming Mr Cheng is entitled to the correspondence to be delivered).
Result
[36]The application is dismissed.
Addendum: oral evidence?
[37] On 29 July 2020, Mr Cheng filed a memorandum requesting five people testify at the hearing. Only one had sworn an affidavit.46 On 6 August, Mr Cheng filed a document entitled “Notice to respondent to answer interrogatories”. I call this the
44 Taylor v Department of Corrections, above n 19, at [29].
45 Taylor v Department of Corrections, above n 19, at [26].
46 Aimee Hunter (on behalf of Corrections).
notice. The notice poses 80 questions, some of which are compound. On 13 August 2020, I convened a telephone conference at which I invited brief argument at the prospect of oral evidence at the hearing.
[38] Mr Cheng said the (affidavit) evidence was inadequate to determine interim relief, and the posed questions important. Ms Shaw advanced the opposite contentions. I declined what I treated as an application for oral evidence and said I would give reasons in this judgment. I can be brief.
[39] Judicial review claims do not normally involve oral evidence, cross-examination included, for the process is intended to be simple, untechnical and prompt.47 The same is true of interlocutory applications; oral evidence requires “special circumstances”.48
[40] No justification existed for oral evidence; indeed, the balance weighed against it. The affidavit evidence provided sufficient information for an informed decision. That other relevant evidence could have been adduced is beside the point. Many questions in the notice are not really questions, but submissions clothed as one. Question 28 provides an example: “Is management aware that the volume of disclosure material is incredibly substantial?” Question 35 provides another: “Why has Thomas not been provided access to the digital files from [Auckland Prison] yet despite numerous assurances that it would be done some weeks ago?” Oral evidence would have necessitated an adjournment because two days (the estimate) would not have been adequate. Logistical difficulties would also have arisen: Auckland is currently at alert level 3.
……………………………..
Downs J
47 New Zealand Institute of Chartered Accountants v Chartered Institute of Management Accountants [2015] NZHC 818, [2015] 3 NZLR 692.
48 High Court Rules 2016, r 7.27.
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