Nancy Ann Kissel v. The Long-term Prison Sentences Review Board

HCAL 137/2016

[2018] HKCFI 1085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 137 of 2016

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Before: Hon Au J and Hon Andrew Chan J in Court

Date of Hearing: 15 December 2017

Date of Judgment: 17 May 2018

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JUDGMENT

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Judgment of the Court:

Background

1.The Applicant was convicted of murder and sentenced to mandatory life sentence on 1 September 2005.  Her appeal against conviction to the Court of Final Appeal was allowed on 11 February 2010 and a retrial was ordered.

2.The Applicant was unanimously convicted of murder after the conclusion of the retrial on 25 March 2011 and sentenced to mandatory life imprisonment.  Her appeal to the Court of Appeal and leave to appeal to the Court of Final Appeal were respectively dismissed on 3 December 2013 and 13 May 2014.  The Applicant has since been incarcerated in Tai Lam Centre for Women.

3.The Long‑term Prison Sentences Review Board (the Board) has reviewed the Applicant’s sentence three times since the commencement of her life sentence. The first two reviews took place in October 2011 and October 2013.  The last review took place in January and February 2016.  By its decision dated 28 April 2016 (“the Decision”), the Board declined to make any recommendation to the Chief Executive.  It was decided that the period of the Applicant’s detention counting from the date of her sentence of the first trial on 1 September 2005 was insufficient in all the circumstances to warrant a consideration of making recommendation to convert her indeterminate sentence to a determinate one to facilitate her release.

4.In addition, it is also the Applicant’s case that, in making the Decision, the Board also refused to indicate any “triggering period” for the Applicant.  The “triggering period” is mentioned by this court in A v the Chief Executive of HKSAR [2013] 4 HKLRD 404 to refer to a “sufficient period” of sentence which would trigger the Board’s consideration of an early release.  The Applicant says the Board refused to do so for the reason that if a life prisoner was informed of a “triggering period”, the effect would be no different from that of indicating a broad figure on the punitive part of the sentence.

The Judicial Review

5.By way of the present judicial review, the Applicant makes two principal challenges to the Decision, which are in the alternative:

(i) When the Board refused to make a recommendation, it had in substance exercised a judicial function to decide that the punitive and deterrent elements of the Applicant’s sentence were insufficient in all the circumstances to merit a consideration for early release.  This was in breach of Article 80 of the Basic Law which reserves the selection of punishment to the Judiciary.  Further or alternatively, the Decision was in breach of the Applicant’s right to have the part of her sentence that represented the punitive and deterrent elements of her punishment determined by an independent and impartial tribunal, in contravention of Article 10 of the Bill of Rights Ordinance.

(ii) Even if the Board was not exercising a judicial function, the Board acted unreasonably in that, as a matter of natural justice, it:

(a) wrongly refused to recommend to the Chief Executive that the Applicant’s indeterminate sentence be substituted for a determinate one;

(b) wrongly refused to identify the length of the period to be served before any application for a determinate sentence would be given serious consideration for release on the merits;

(c) wrongly refused to identify the length of the period that would have to be served before the requirements of retribution and deterrence would have been served in respect of the Applicant’s particular offence; and

(d) should have identified the point in time at which the sole consideration for the Applicant’s release would be progress in custody and potential dangerousness to society.

Discussion

6.In respect of the first challenge, the Applicant accepts that since this court is bound by the Court of Appeal’s decision of Tong Yu Lam v the Long‑term Prison Sentences Review Board [2009] 4 HKC 133 (CA), which decided that the Board was exercising an executive but not judicial function (see also paragraphs 44 and 45 of our judgment in A v the Chief Executive of HKSAR), Mr Fitzgerald QC fairly accepts that this argument is best reserved for the Court of Appeal or the Court of Final Appeal[1]. There is thus no merit in this challenge for the present purpose.

7.In respect of the second challenge, although a number of grounds had been put forward, it was essentially argued by the Applicant that in making the Decision, the Board should, as a matter of fairness, identify the period either (i) that is necessary for the Applicant to be served to satisfy the requirements of retribution and deterrents, or (ii) what finite term should be substituted to allow for her release in the future.  In the alternative to the above, it was also argued, in the light of this court’s decision in A v the Chief Executive of HSKAR, the Board should, at the very least, have indicated the minimum period the Applicant must serve which would trigger the Board’s real and effective consideration of the merits of her case for early release.  Hence, in summary, it is the Applicant’s fundamental proposition that at the time of the most recent review, the Board should indicate to the Applicant either (i) the definite term, or (ii) the punitive part, or (iii) the triggering period of her sentence as a matter of fairness.

8.Having heard extensive arguments from both sides, we are not convinced that that should be the case for the following reasons.

9.It was held by the Court of Appeal in Tong Yu Lam, among others, that it would be illogical to compel the Board to provide an indication of how long the convicted person should be required to serve to meet the punitive part of the sentence in all reviews of mandatory life cases as that was a judicial function which would not be for the Board to perform.

10.Paragraph 20 of Tong Yu Lam’s judgment explained this as follow:

“20. It is said that in any event the Board should in all reviews of mandatory life cases provide an indication of how long the convicted person should be required to serve to meet the punitive part of the sentence. This, with respect, is not logical. It is accepted that the determination of a punitive part of a sentence – if in mandatory life cases that were to be required – is a judicial function which it would not be for the Board to perform. That being so, it would be odd for the Board to take upon itself the function of giving some broad and non‑judicially determined intimation tied to the concept of a punitive period. Be that as it may, as matters presently stand, the fact is that the Board’s function is a step in the exercise of executive clemency where the punitive period is treated as the entire term of the sentence; and it is not in those circumstances appropriate for the Board to be demarcating some lesser period as the punitive period, save only to the extent that such a determination may be said to be implied where it recommends the substitution of a determinate sentence.” (emphasis added)

11.The Court of Appeal came to its decision, in part, relying on the Court of Final Appeal’s decision in Lau Cheong & Another v HKSAR [2002] 5 HKCFAR 415.

12.In Lau Cheong, it was argued by the applicant that culpability of those convicted for murder varied greatly, the imposition of a singular sentence without a minimum term was therefore either arbitrary and unconstitutional or constituted cruel, inhuman or degrading punishment.  The Court of Final Appeal rejected those contentions and dealt with the arguments, after tracing the history of the sentence for murder and the history of the enactment of legislations in Hong Kong, in paragraphs 69 to 92 of its judgment.

13.The Court of Final Appeal then examined the Long‑term Prison Sentences Review Ordinance, Cap 524 (“the Ordinance”), in particular its composition, functions and duties, commencing at paragraph 93.  It was noted by the Court of Final Appeal that the Board had a statutory duty to consider each individual case at the regular intervals prescribed.  At paragraph 99, the Court of Final Appeal noted the change in 1997 in sentencing those who were under 18 at the time of the commission of the offence of murder, and concluded that the legislature implicitly reconfirmed the imposition of mandatory life sentence (without a minimum term) for adult murder offenders.

14.The Court of Final Appeal then discussed the role of the legislature in its judgment and emphasised again the legitimacy of the mandatory life imprisonment at paragraphs 106 and 107 of its judgment:

“106. In prescribing punishments for criminal offences, the legislature usually prescribes the maximum penalties that may be imposed by the courts. However, the punishment for murder stands in a special position. Continuing the position at common law, the legislature in Hong Kong has always provided for a mandatory sentence in respect of adult murderers. When it passed the Crimes (Amendment) (No 3) Bill in 1993, it decided that mandatory life imprisonment should be the penalty for murder. It arrived at that decision when the Bill of Rights had been part of our law for nearly two years. And in 1997, when it enacted the exception for those under 18 years of age, the legislature implicitly confirmed its decision to impose a mandatory life sentence in the case of adults.

107. In the extensive debate that had taken place, different views had been expressed, including the view (which had support which was not insignificant) that the mandatory death penalty should not only be retained, but should be carried into effect. Ultimately, the opposing school which favoured abolition of the death penalty carried the day but this was achieved only on the basis that it would be replaced by the mandatory life sentence.” (emphasis added)

The Court of Final Appeal concluded with the remarks that due weight should be given to the legislature’s decision that a statutory regime for the individualised review of each sentence after its mandatory imposition should be put in place.

15.The Court of Final Appeal then looked at the position in England and Wales and concluded that for our purposes:

“.... it suffices to note that the system in Hong Kong is materially different. No tariff is fixed and mandatory life imprisonment continues to take effect as an indeterminate sentence along the traditional lines described above.”

As such, cases from England and Wales are of limited benefit and must be read with caution.

16.Both Tong Yu Lam and Lau Cheong are binding on this Court in every aspects of the case.

17.In the premises, in our view, if (as held in Tong Yu Lam, applying Lau Cheong) it would be inappropriate for the Board to demarcate some lesser period of the sentence as the punitive period, as a matter of logic, it would be absurd to require as matter of natural justice the Board to further demarcate the punitive period into any other lesser period such as the “triggering period”. 

18.Realising his difficulty with the authorities, it was then argued by the Applicant that Tong Yu Lam was decided per incuriam on this issue because the Court of Appeal did not refer to the legislative history of the Ordinance.

19.We are again not convinced that was the case because, as mentioned above, the Court of Appeal in Tong Yu Lam had relied on Lau Cheong. Similarly, in refusing to grant leave to appeal, Chief Justice Li had also referred to the Court of Final Appeal’s judgment in Lau Cheong to conclude in the Determination that:

“1. .... There is no scope for now contending that such a mandatory life sentence can only be valid if a minimum term is fixed by a judge as the punitive part of the sentence.

2. Nor is Mr Harris SC’s fallback argument that the Board should set a minimum term or give a broad indication of it viable.”

20.In the premises, both the Court of Appeal and the Court of Final Appeal had clearly in mind the judgment in Lau Cheong in deciding Tong Yu Lam.  As we have set out above, the Court of Final Appeal had in Lau Cheong looked at in detail the legislative history of the Ordinance in reaching its judgment.  There is no basis to say that Tong Yu Lam is per incuriam.

21.In relation to the alternative ground of the second challenge, it was argued that the Board should have indicated the minimum period the Applicant had to serve which would “trigger” the Board’s real and effective consideration of the merit of her case for early release.  In this respect the Applicant again relied on A v Chief Executive of HKSAR at paragraph 28 to refer to a “sufficient period” of sentence which this court said would trigger the Board’s effective consideration of an early release.

22.In support of this ground, the Applicant contented that in all murder cases, the trial judge was required, by law, to submit a report to the BOR (the Board of Review, an administrative body before the Board was given its statutory status in 1997), which would contain a recommendation as to the minimum term that the prisoner should serve.  The Board took account of that term, together with a range of other factors at the time the case being reviewed and decided whether or not to make a recommendation to the Governor.

23.It was submitted that there had been a minimum period of detention within a sentence of life imprisonment, at least since 1986, that the prisoner had to serve before the Board considered release and this could be said to equate with the “triggering period” described in A v the Chief Executive of HKSAR.

24.With respect, we disagree.  If one looks at the Hong Kong Legislative Council paper dated 11 November 1992, to which the Applicant relied upon in advancing the above contention, it actually stated as follows:

“ In cases where a sentence of life imprisonment is imposed, the Governor will call on the trial judge to give him a written report indicating any special considerations or mitigating circumstances and, where appropriate, what in his view should be the minimum term of imprisonment to be served. This is currently the practice with regard to sentences of capital punishment.

Life sentences will be reviewed by the Board of Review initially after five years and subsequently every two years, unless the Governor directs that a case should be reviewed earlier after having considered the trial judge’s report.

Once the Bill becomes law, all those who are then under sentence of death will have their sentences commuted to life imprisonment. Currently there are 32 prisoners who fall into this category.” (emphasis added)

25.It can be seen therefore that only in “appropriate case” a minimum term would be indicated.  It is certainly not any legal requirement as such.

26.In the Legislative Council brief prepared in anticipation for the abolition of the death penalty[2], one can see the minutes of the Executive Council meeting held on 20 October 1992:

“At the meeting of the Executive Council on 20 October 1992, the Council ADVISED and the Governor ORDERED that:

4. There are four possible options for achieving abolition of capital punishment. They are –

(a) replacement by a mandatory sentence of life imprisonment. This will not allow trial judges to impose lesser sentences even if there are mitigating circumstances. Nevertheless, the review and remission systems mentioned earlier would continue to allow subsequent remission of any life sentence at a later date;

(b) attachment of a rider to a mandatory sentence to allow the court to recommend the minimum period to be served prior to consideration being given to release of the person sentenced, as is the case in England and Wales, and/or to record any factors that the court thinks should be taken into account as and when the sentence is reviewed in later years;

(c) replacement by a discretionary sentence of life imprisonment, which would allow the court the discretion to impose a lesser sentence is it thought fit; or

(d) replacement by a broad sentencing range with both minimum and maximum periods.

5. Having considered the four options, it was decided that capital punishment should be abolished and replaced by a mandatory sentence of life imprisonment as outline in para 4(a) above because –

(a) any society based on the rule of law must ensure that its laws reflect the realities of contemporary life and thought;

(b) it is wrong in principle to leave laws on the Statute Book which are out of date, which are not used and which there is no intention of using;

(c) on 26 June 1991, the Legislative Council voted in favour of the abolition of capital punishment; and

(d) therefore the penalty of capital punishment should be replaced by life imprisonment.”

The choice of the Government was clear as to what would be the substituted sentence after the abolition of death penalty in Hong Kong.  That choice was to a large extent reflected and confirmed by the legislature.

27.It was further argued by Mr Fitzgerald that in A v Chief Executive of HKSAR, notwithstanding Tong Yu Lam, it was open to the Board to specify a “triggering period” by which, in applicable circumstances, the Board might identify broadly in advance the likely length of further custody, since the role of the Board was to consider whether the Applicant had served a sufficient period of sentence which would trigger the Board to consider early release.

28.With respect, we said exactly what we meant in paragraph 28 of our judgment.  There was nothing to be added or read between the lines:

“28. On a proper and objective reading of s.8(c) of the Ordinance, the Board should have primary regard to ‘whether the part of the prisoner’s sentence already served is sufficient, in all the circumstances (in particular given the nature of the offence for which the prisoner is being detained), to warrant consideration being given to having the prisoner released from detention early’, it seems clearto us that under this, the Board in performing its function is first to consider whether (having taking into account all the circumstances of the case before it) the applicant has already served a sufficient period of sentence which would justify (ie, ‘warrant’) the ‘consideration’ of whether the prisoner should be released early from his detention. What it means is that this ‘sufficient’ period of sentence is one which would ‘trigger’ the Board to consider whether, and if so when and how, the prisoner should be released early. When determining whether such a sufficient period is reached, the Board should look at all the circumstances of the applicant, but give particular importance to the nature of the offence convicted.”

29.The “sufficient period” was in our view no more than a step in the review process, having regards to the principles laid down in Section 8(c) of the Ordinance.  It was obviously not our intention to divide the mandatory life sentence into further “sub‑periods” within the so called “punitive term” or “punitive and deterrent elements” of the mandatory life sentence. 

30.In any event, if the Applicant’s contention is correct, it effectively means that every time (or at the least there must be a time) when the Board rejects a review, it must indicate to the prisoner what would be the “triggering period” for the purpose of the next review.  This is premised on the proposition in rejecting the review, the Board must already have in mind what is the “triggering period” before it could form that view that it has not been reached.

31.This in our view is incorrect.

32.In this respect, it is worthwhile to first look at the functions and duties of the Board.  The purpose of the Ordinance is to provide for the review of prison sentences, among others, imposed on prisoners sentenced in Hong Kong to indeterminate or long‑term sentences.  Indeterminate sentence means a mandatory life sentence or a discretionary life sentence or detention at Executive discretion.  The Board is established under the Ordinance and it has the functions conferred and the duties imposed on it by the Ordinance.  Hence the principal function of the Board is to conduct review of, among others, indeterminate and long‑term sentences of prisoners sentenced in Hong Kong. Section 8 of the Ordinance sets out the four principles on which the Board is required to exercise or perform its functions and duties.

33.For the purpose of reviewing a prisoner’s sentence under the Ordinance, the Board may take into account the matters mentioned in Schedule 1 of its Regulation and any other matters the Board considers relevant.  Taking all that together, the Board in carrying out its function of reviewing an indeterminate sentence must have regard to the four principles stated in Section 8 on each and every occasion.  That of course includes Section 8(c).  In other words, it seems clear to us that the Board must consider each individual prisoner’s application afresh every time since the circumstances of the prisoner may change significantly between one review and the next.

34.Considered against the above, there was no question that the Board should by the time of the Decision have in its mind a definite period of sentence that the Applicant had already served to trigger the consideration.  As pointed out, mandatory life sentence remains to be one singular sentence subject to executive clemency.  Whether the “sufficient period” has been reached in any particular case depends on a number of interacting matters and the Board is required to bear in mind all the principles and matters stated in the Ordinance and its Regulation in adopting a holistic approach in its assessment.  This is a multi‑faceted fact sensitive assessment.  The status of each of these interacting matters relating to a particular prisoner by its own nature may vary and change every time he or she comes for review.

35.Hence, by definition, the Board could only form a view as to whether the “sufficient period” has been reached in relation to a particular prison only at the time of the particular review by assessing the cumulative result of these interacting matters with their then extant status.  If the Board does not find that the “sufficient period” has been reached at a particular review by reference to the then status of these interacting matters, it does not mean that it must and could then form a view as to when or how long before that “sufficient period” could be reached, as that would be dependent on the future status of those interacting matters.

36.Further, it is also worth noting this.  To set a minimum term for all prisoners, whether they are serving mandatory life sentence, discretionary life sentence or long‑term sentence ie sentences more than 10 years, indeed may cut both ways because on reviewing the sentence of a prisoner, the Board is not authorised to order the early release of a prisoner before any minimum term applicable to the prisoner has been served[3]. That is, not to mention, there is the statutory definition of what amounts to minimum term in the Ordinance.  In Schedule 1 of its Regulation, it is only “the minimum term of the prisoner’s sentence (if applicable)” that may be taken into account by the Board.

37.It is therefore our view that on each occasion the Board and its members, who come to the meeting with their diverse backgrounds and expertise, are required to examine the circumstances as at that time pertaining to each prisoner by carefully balancing the nature of the offence with other circumstances, to come to a decision whether the point in time has been reached where the Board ought to consider that the sentence already served warrants consideration being given for having the prisoner released from detention earlier. 

38.In this respect, the prisoners are well aware of what matters are relevant to the Board’s consideration as identified in the statute relevant to the review.  They are free and entitled to make whatever full representations relating to those matters to convince the Board to exercise its power in their favour.  In the premises, leaving aside our above conclusion that it is simply not open, inappropriate and impracticable for the Board to identify the triggering period or the punitive part of the sentence in rejecting a review, there is also no question that the prisoners are somehow unfairly prejudiced in not being able to make informed representations without knowing the “triggering period” or the punitive part of the sentence.

39.It was further submitted then that Section 8(c) was introduced expressly because view was expressed in the Bills Committee that the first draft which contained no equivalent of subparagraph (c) had failed to address the issue of justice implicit in the imposing of a tariff period to be served for punishment:

“Members requested the Administration to review the drafting of clause 8 to reflect the policy intent that the principles stated therein were only the core considerations and not meant to be exhaustive, and to reflect in the clause the concept of serving the punitive tariff period by prisoners. The Administration agreed to examine these points.”

40.The Deputy Secretary for Security later advised on 3 June 1997 “that in response to the Bills Committee’s suggestion, a new sub‑clause 8(ba) had been proposed to require the Board to have regard to whether the prisoner had served a sufficient part of his sentence, in particular given the nature of the offence for which the prisoner was sentenced.  It was submitted that the proposed sub‑clause 8(ba) had become section 8(c) of the Ordinance and had the same purpose identified by the Bills Committee, namely, to address the issue of justice implicit in the imposing of a tariff period to be served for punishment.

41.We have our reservation.  If that were the case, there was simply no point, also in 1997 to put the under 18 murder offenders into a separate category of their own.  The abovementioned view expressed in the Committee stage is equally consistent with the interpretation that the then original Section 8 in its drafted form mainly focused on rehabilitative effect of the offender as well as the protection of the community and failed to look at the case from the victim’s angle or the victim’s family point.  After all, the sentence for murder prior to 1993 was death penalty, the most severe form of punishment in the reign of criminal law.

42.It was also submitted that because of the Board’s refusal to inform the Applicant of the length of the “punitive term” or the “triggering period”, the Applicant was effectively denied the right to make informed representations to the Board.

43.We again do not agree.  We had the opportunity in reading the representations made to the Board in the Applicant’s last review.  The Applicant was represented by two law firms and the written submissions made on her behalf were extensive and substantial.  There was nothing to stop the Applicant from providing all relevant information (see also our observation at paragraph 38 above).  As a matter of fact, all the procedural safeguards had been strictly adhered to in her case. It is also pertinent to note that Mr Fitzgerald QC also appeared on behalf of the Applicant at the review hearing.

Conclusion

44.For all the reasons stated above, we dismiss the Applicant’s application with costs nisi to the Respondents, to be taxed, if not agreed, with certificate for two counsel.

Mr Edward Fitzgerald, QC, Mr Derek Chan, Mr Benson Tsoi and Ms Lydia Leung, instructed by Boase Cohen & Collins, for the Applicant

Mr Russell Coleman, SC and Ms Queenie Lau, instructed by Wilkinson & Grist, for the Respondent