Hin Han Shum
Squire Patton Boggs, Hong Kong
​​​​​​​hinhan.shum@squirepb.com

Who is a friend? Who can we consider as friends?

These are not just questions of philosophy and reflection, but are questions of law as well.  

Pursuant to Section 205 of the Hong Kong Prison Rules (Cap 234A) of the Hong Kong laws, prisoners awaiting trial in prison default of bail are permitted to see only “relatives or friends” for the purpose of providing bail. Otherwise, under Section 203 of the Hong Kong Prison Rules, they are allowed to be visited by “visitors”. 

On 14 May 2018, the Court of Final Appeal issued a landmark judgment of HKSAR v WAN THOMAS (溫皓竣) (D1)  and HKSAR v GUAN QIAOYONG (關巧用) (D2) FACC Nos. 6 and 7 of 2017 [2018] HKCFA 15 where it considered the question of who is a friend and clarified the rules relating to visitation rights for inmates pending trial.

The Visitation Procedure

Pursuant to the Prison Rules which dictate the prison visitation procedures in Hong Kong, the general procedure for visiting an inmate pending trial is to fill in a form which would be inputted into a computer system with the correspondence services department to set out the identification of the visitor and to specify the relationship with the prisoner. With regard to the relationship description, the computer system only has 2 options to choose from: “friend” or “relative”. 

The Facts of the Case

The appellants, Wan Thomas and Guan Qiao Yong, had indicated on the form that they were a “friend” of the respective inmates pending trial.  However, they were in fact not personal friends of the respective inmates, but instead were employees of a company which offered “representative visiting services” to the family and friends of prisoners on remand who were detained at that correctional facilities reception centre. Their services included visits to prisoners awaiting trial on behalf of their family and friends, and to convey messages to and from the prisoners.

The appellants were later charged with conspiracy to defraud the officers of the Correctional Services Department by dishonestly and falsely representing that they were friends of inmates remanded at one of the correctional facilities reception centres in Hong Kong.

The Appeal

On 17 April 2018, the highest court in Hong Kong (the Court of Final Appeal) heard the appellants’ case and considered the following questions:-

“(i) whether under those Rules visits to such prisoners are limited to their relatives and friends, and

(ii) if so, whether under the visiting regime a prisoner’s friends are limited only to those persons who are personal acquaintances and known to him so that, absent special authority, visits by strangers or persons he has not previously met are excluded in all cases and regardless of the purpose of the visit.”

In looking at those questions, the Court discussed whether the meaning of “friends” of a prisoner is restricted to persons with a pre-existing personal relationship with the prisoner, and whether that would preclude strangers or persons whom the respective prisoner has never met. The definition of “friend” is not explicitly defined in the relevant statutes.

The Court noted that throughout the Hong Kong legal practice, the word “friend” is often applied in situations where there is no personal relationship between the subject person/institution and the “friend”.  Some examples are set out below:

1. A “McKenzie friend” a person who assists and offers legal advice to a litigant in person.
2. Order 80 rule 2(1) of The Rules of the High Court (Cap 4A) of the Hong Kong laws sets out that a “next friend” is a person who can assist another person suffering from a disability to make a claim.  There is no requirement for any intimacy in the relationship between the disabled person and the “next friend”.
3. A “friend of the court” is a lawyer who does not represent any parties in a court, but yet provides assistance to a judge.  There is no personal friendship implied between the lawyer and the judge. 
4. Lawyers often refer to their peers as “my learned friend” although it is out of professional courtesy rather than a true personal relationship.

The Court also noted that there are real world situations where relatives and close personal friends of inmates would be unable to visit a prisoner awaiting trial, for example, where their working hours do not allow it, they are overseas, or where they are incapacitated through ill health.  

The Decision and What it Really Means

Having considered the matters highlighted above, and also based upon the reading and interpretation of the Prison Rules in depth, the Court ultimately decided to allow the appeal of the appellants.

Much of the discussion in the judgment rests on the literal meaning of the word “friend” and also the society’s use of this word.  For example, a Facebook friend is a “friend” but it may be one that does not have an intimate or true personal relationship with the other person who he/she “friended”.  Furthermore, in terms of statistics, there are over 10,000 lawyers in Hong Kong and on many, if not most occasions, the lawyer representing the opposing party in a court case is referred to as a “learned friend” although the two lawyers may not have ever met each other.

All these examples show that the Hong Kong society’s use of the word “friend” is actually quite loose and can include a whole range of people, from very close friends, to acquaintances, to persons who are actually strangers, but with more of a connection to us than the other millions of faces in the city. The Court’s decision reflects these cultural nuances and the acceptance that in a society a “friend” could potentially be anyone, even persons not already known to us.

In addition to acknowledging the society’s take on a specific word, such a decision is welcomed, since this will allow inmates, especially those awaiting trial and with the presumption of innocence, to receive the type of support they are entitled to under the Prison Rules, from family and friends who are unable to visit.