Lkm v. Commissioner of Police and Another

[English Translation – 英譯本]

HCAL 2422/2020

[2021] HKCFI 1732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2422 OF 2020

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BETWEEN

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Before: Hon Wong J in Court

Date of Notice of Application: 26 November 2020

Date of Applicant’s 1^st Affidavit: 30 November 2020

Date of 1^st Putative Respondent’s Written Submission: 19 March 2021

Date of 2^nd Putative Respondent’s Written Submission: 26 March 2021

Date of Applicant’s Affidavit with Written Submission in Response against 1^st Putative Respondent Attached: 24 March 2021

Date of Applicant’s Affidavit with Written Submission in Response against 2^nd Putative Respondent Attached: 30 March 2021

Date of Refusal of Legal Aid by Director of Legal Aid: 7 April 2021

Date on which 1^st Respondent’s Submission in Response should be submitted: 28 April 2021 (not submitted)

Date on which 2^nd Respondent Submitted Submission in Response: 26 April 2021

Date of Judgment: 23 July 2021

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JUDGMENT

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1.The applicant is serving a prison sentence and he has made an application for leave to apply for judicial review against：

(1) The Commissioner of Police of Hong Kong ("the Commissioner”); and

(2) the Long-term Prison Sentences Review Board (“the Review Board”),

challenging, mainly, the result of the review conducted by the latter on 27 August 2020 on the length of the applicant’s prison sentence.

2.The applicant alleged that he had given assistance to the police, but the Commissioner’s report provided to the Review Board dated 10 June 2020[2] was neither fair nor impartial, made unkind representations against him and gave a wrong judgment. Hence the Review Board was unable to understand all the facts accurately, and this resulted in the applicant being deprived of a fair review on his sentence.

3.The applicant did not ask for an oral hearing. After giving consideration in respect of paragraph 6 of Practice Direction SL3, I did not think an oral hearing was necessary. I give this judgment to set out my decision and reasons for the decision.

The criminal case relevant to the present application[3]

4.The circumstances of the case may be briefly described as follows. In the small hours on 22 July 1994, the police set up a road block and a taxi was intercepted. The applicant and another male were onboard. They were both wanted persons. The applicant tried to run away but was caught by a police officer. In the course of resisting, the applicant removed the police officer’s revolver from the holster and shot that officer at a close distance. The officer died right on the spot. When other officers came up for reinforcement, the applicant fired at them. One officer got shot on the arm and the applicant was eventually subdued and arrested.

5.In 1995, the applicant was found guilty of one charge of murder and one charge of “shooting with intent to do grievous bodily harm”[4]. He was sentenced to life imprisonment for the charge of murder and 21 years’ imprisonment for the other charge. His application for appeal was refused.

Other cases in which the applicant was convicted[5]

6.On 20 June 1995, the applicant was sentenced to imprisonment for a total of 3 years and 6 months in respect of two charges of robbery. Both robberies took place inside lifts in Tin Yiu Estate, Tin Shui Wai, and the victims were females who lost their property at knife point while being alone at the material time.

7.The applicant had a total of 5 records of previous conviction.

The assistance provided by the applicant to the police

8.The assistance provided by the applicant to the police can be seen in the report submitted by the police to the Review Board on 23 May 2002[6]. The relevant parts of the report are as follows:

“The prisoner and an accomplice gave evidence as prosecution witnesses in a case of ‘Soliciting to murder’ of which was tried between 15.1.2002 and 28.1.2002.

In December 1999, the mastermind behind that case, a serving prisoner, solicited Lau and another inmate to murder a third party for betraying him. However, the two prisoners reported the case to the authorities, instead of carrying out the plot.

Police investigation led to the arrest of the mastermind. Following legal advice, he was charged with two counts of ‘Soliciting to murder’. However, on 28.1.2002 the judge ruled there was no case to answer and acquitted him of the charges.

During the course of police investigation, the prisoner was very co-operative and gave a number of witness statements detailing occurrences inside prison during the material time. His statements were very important as they could corroborate the evidence of other witnesses.

During the trial, the prisoner gave firm evidence, despite being confronted heavily by the defence counsel. He stood firm and created an impression to the jury that his testimony was true and accurate. Although the case resulted in an acquittal, the prisoner performed credibly in court. This was also agreed by the prosecuting counsel. The failure of the case was not due to the prisoner, but as commented by the judge, because of the credibility of other key witnesses and evidence.

It is also worth noting that the defendant in that case was a notorious triad member who was believed to have great influence both inside and outside prison. The prisoner had to face possible retaliation by testifying in court. Nevertheless, he continued to assist the authorities throughout the course of the investigation and the duration of the trial. His positive co-operation was one of the key factors which brought that case to court.

However, given the gravity of the offences committed by the prisoner, there is still no ground for a reduction of sentence. Whilst appreciating the assistance of this prisoner, I note he has only served seven years of a life imprisonment and it is too early to consider any reduction of sentence. This prisoner showed a callous disrespect for society and the agents of law and order. He murdered one police officer and wounded another in the course of his crimes.”

9.According to the applicant, this 2002 report has given impartial and accurate description of the assistance he had provided. However, the subsequent reports submitted by the police to the Review Board just took matters out of context and were full of negative elements, in particular the one in 2016. The report submitted on 10 June 2020[7] made no difference, which was not only far from being fair or impartial, but it even denied his assistance and also stressed that his testimony in court had failed to secure a conviction of the person against whom he had testified.

10.The applicant alleged that the Review Board had considered only the 2020 report in the review on 27 August 2020. The Review Board did not fully or accurately understand what had happened and the facts, which was unconscionable and violated the basic procedural requirements. As a result, he was deprived of a fair review on the length of his prison sentence.

Relief sought by the applicant

11.The relief sought by the applicant include the following:

(1) Against the Commissioner: the police be ordered to rectify the content of the reports;

(2) Against the Review Board: the Review Board be ordered to discharge its duties, understand the details of the actual circumstances of the assistance which he had rendered to the police; and

(3) Clarifying if a prisoner serving life imprisonment can have remission in sentence after rendering assistance to a law enforcement agency.

Arguments in the present application

12.The main grounds put forward by the applicant were that since the police reports were improper and failed to give a detailed account to the Review Board of the assistance he had rendered to the police, the Review Board could not understand the actual circumstances and hence made a determination unfair to him. Moreover, the Review Board had not fully considered the relevant factors, nor called for a special assessment report in respect of the applicant, and the consideration given on the review was not comprehensive.

13.The applicant also contended that since no appeal would lie from the result of the review made by the Review Board, he had no alternative but apply for judicial review.

14.He argued that the fact that he had rendered assistance to the police was a mitigating factor under law. He cited Z v HKSAR[8] of the Court of Final Appeal in support, contending that the Review Board had not fully considered such situation and hence its decision violated his substantive legitimate expectation, in particular when other tainted witnesses who had assisted the police in the same case had received remission in sentence.

15.The applicant also argued that the Review Board had not given sufficient regard to the following mandatory considerations[9]:

(1) the length of time he has served in prison;

(2) his age when the offence was committed; and

(3) his performance and conduct in prison.

16.He also criticized that it was improper for the Review Board not to have obtained a special assessment report as the Correctional Services Department (“CSD”) had suggested repeatedly. This departed significantly from his legitimate expectation. Moreover, the Review Board had based their consideration only on the usual reports. This reflected they lacked thorough consideration of his case, which was unreasonable.

17.The applicant has also pointed to some other cases dealt with by the Review Board, and contended that the Review Board had failed to make sufficient reference to similar cases, causing unfairness to him.

18.The applicant also alleged that his age was not mentioned in the written reasons of the Review Board and queried if the fact that he was only 18 at the time of the offence was ignored.

19.The applicant submitted that the Review Board had been improper in dealing with the case from the perspective of procedural justice or outcome justice.

Discussion

The relevant law and policy

20.Judicial review is not another avenue of appeal, and its main functions are:

(1) to examine if the decision made by the authority concerned is erroneous in law;

(2) whether the authority concerned has, in the decision making process and course of consideration and in the procedure adopted, complied with the principle of fairness, contravened any law or regulation, or was in breach of the applicant’s legitimate expectation; and

(3) whether or not the final decision is unreasonable according to the Wednesbury[10] standard.

21.Generally speaking, fact-finding is the duty of the authority which has made the decision in question. Unless it is found that in the course of making the finding, there is mistake or misunderstanding in the grasp of the facts or lack of evidential support in the findings of facts, the court in judicial review would not lightly interfere with the findings made by the said authority. Of course, if the findings of facts are unreasonable according to the Wednesbury standard, the court would intervene.

22.The Review Board was established pursuant to the Long-term Prison Sentences Review Ordinance[11] (“the Ordinance”). One of its main functions is to conduct review for prisoners serving indeterminate imprisonment. Life imprisonment is regarded as an indeterminate sentence.

23.According to section 8 of the Ordinance:

“The [Review Board] must have primary regard to the following principles when exercising its functions or performing its duties in relation to a prisoner—

(a) in any case where the prisoner has not been completely rehabilitated, the rehabilitative effect of releasing the prisoner from detention before the unremitted part of the prisoner’s sentence is served;

(b) the benefits to the prisoner and to the community arising from the prisoner being supervised after release with a view to securing, or increasing the likelihood of securing, the prisoner’s rehabilitation (in any case where the prisoner has not been completely rehabilitated) and successful reintegration into the community

(c) 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;

(d) the need to protect members of the community from reasonably foreseeable harm that could be inflicted by the prisoner as a result of having been released from detention early.”

24.For the purpose of reviewing the term of imprisonment, the Review Board may take into account the matters set out under Schedule 1 of the Long-term Prison Sentences Review Regulation[12] (“Schedule 1”) and any other matter which the Review Board regards as relevant. The matters set out under Schedule 1 are as follows:

“1. The nature of the offence.

2. The prisoner’s criminal record.

3. Reports, if any, made by the trial judge in relation to the offence.

4. Any mitigating circumstances.

5. Remorse shown by the prisoner for the offence.

6. The prisoner’s response to counselling and rehabilitative treatment.

7. The prisoner’s age when the offence was committed.

8. The prisoner’s rehabilitation prospects and employment prospects on release.

9. Sentences in other similar cases.

10. Public interest, including public safety and the likelihood of commission of the same or further offence

11. The prisoner’s psychological condition.

12. The prisoner’s psychiatric condition.

13. The prisoner’s conduct in prison.

14. The prisoner’s state of health.

15. The prisoner’s age.

16. The length of time the prisoner has served in prison.

17. The minimum term of the prisoner’s sentence (if applicable).

18. Any assistance provided by the prisoner to law enforcement agencies.”

25.To facilitate review of sentence, the Review Board is entitled to request[13]：

(1) the Commissioner of Correctional Services to provide a report specifying the conduct of the prisoner while serving the sentence and any relevant medical, psychological or psychiatric report relating to the prisoner; and

(2) the Commissioner of Police to provide a copy of the prisoner’s criminal record and, if available, particulars of any assistance that the prisoner has given to police officers in connection with their investigations concerning alleged offences; and

(3) the Registrar of the High Court to provide ——

(i) in relation to the offence in respect of which the prisoner is serving the sentence, a copy of the summing up by the judge to the jury, or, in the event of a plea of guilty, a copy of the agreed statement of facts which is read into the court record, of any plea in mitigation, of any comments made by the judge at the sentencing as to the minimum term to be served, and of any other matters recorded by the judge for the purposes of any such review; and

(ii) where the sentence is an indeterminate sentence, a copy of the report under section 67B or 67C of the Criminal Procedure Ordinance[14] which relates to the prisoner or sentence; and

(4) the Director of Social Welfare to provide a report setting out ——

(i) the prisoner’s family circumstances; and

(ii) whether or not the prisoner is likely to be employed on release; and

(iii) whether or not the prisoner is likely to be rehabilitated on release; and

(iv) whether or not there are any grounds for treating the prisoner compassionately.

Relevant decision made by the Review Board

26.The Review Board has the power to make recommendation to the Chief Executive that a determinate sentence be substituted for a prisoner’s indeterminate sentence[15], and this is what the applicant has wished.

27.The Review Board, in its letter to the applicant dated 29 October 2020[16], stated the matters to which it had taken regard in the 2020 review:

(1) the principles under section 8 of the Ordinance[17];

(2) all reports and documents related to the applicant, including the annexures to the statement submitted by the applicant;

(3) letters submitted by other people for the applicant;

(4) matters to which Schedule 1[18] is applicable and other relevant matters;

(5) the applicant has served the prison sentence for 25 years and 4 months;

(6) his performance has been maintained at a very good level at the correctional institution in recent years;

(7) he has obtained an associate degree and a bachelor degree in General Studies in 2015 and 2017 respectively;

(8) he has rendered assistance to the police in a case of soliciting to murder; and

(9) the offences which he committed are extremely serious.

28.The Review Board was of the view that the length of sentence which the applicant had served was not sufficient under all the circumstances and therefore decided:

(1) to make no order of conditional discharge to the applicant; and

(2) to make no recommendation to the Chief Executive to substitute a determinate sentence for his sentence.

29.The Review Board indicated that:

(1) a clinical psychologist’s report would be called for at the time of the next review of sentence (around July 2022) as a reference; and

(2) the assistance rendered to the police as mentioned would remain one of the factors for consideration.

Police report

30.The police report was undoubtedly one of the important considerations of the Review Board. The applicant alleged that the police had made unkind representations against him in the reports and also gave a wrong judgment. This was the case in the report provided to the Review Board for the 2020 meeting[19], and the one provided back in 2016 even failed to give a fair or accurate illustration of the assistance which he had given to the police.

31.From the documents submitted by the applicant, it can be seen that he had raised the same incident of giving assistance to the police in all the reviews on sentence. The police did report the matter in the first six reviews. The first report was as what has been stated in paragraph 8 above, whereas the contents of the subsequent reports were not clear because the applicant did not provide the details. The police indicated in the 2014 report that no further comment was added because they had already responded on previous occasions[20].

32.In the report provided for the review in 2016[21], the police said that the applicant had testified for the police in a case in which the accused was found not guilty after trial and that the applicant had mentioned the incident repeatedly on previous occasions.

33.In the reports provided for the reviews in 2018 and 2020[22], the police stated that since the matter concerned had been explained in the report (ie the report referred to in the preceding paragraph in this judgment), they had no further comment.

34.Ms Katherine Chan, Government Counsel acting for the 1^st putative respondent, said in her written submission that the applicant’s criticism was only his subjective assertion without any factual basis in support.

35.The applicant in his written submission in reply pointed out that the Review Board had requested the police for the following information and comment[23]:

(1) to confirm if the applicant had rendered assistance to the police as described in the application;

(2) if so, state the extent and the details of his assistance;

(3) whether the court had considered the said assistance in sentencing;

(4) whether the police agreed to the applicant’s application for review of prison sentence.

However, in the reports given to the Review Board on 10 June 2020[24] and 30 May 2016[25], the police did not provide sufficient information as requested but deliberately hid the helpfulness and details of the applicant’s assistance rendered to the authority. Such was not impartial, fair or accurate. In contrast, in the police report provided on 24 May 2002[26], there were detailed description of the helpfulness and details of the applicant’s assistance.

36.For this reason, the applicant submitted that the police had not compiled the report impartially or fairly and there was real possibility of bias.

37.The applicant indicated that although he did not dispute the police comment that he showed contempt for law enforcement agents, the information provided by them was deficient, and failed to assist the Review Board in coming to any proper independent decision. Such an approach was a violation of the principle of natural justice.

38.He also indicated that the two prisoners[27] who had assisted in the same case received remission in sentence precisely because the police gave comments in their favour in the reports and recommended remission in their sentences.

39.I have read all the reports submitted to the court in the present case. I find that the police had given in the first report, ie the one in 2002, detailed illustration of the assistance provided by the applicant to the authority. Although the presentation was not the same in the 2016 report, there was no mistake as to the factual information. It was expressed clearly in all other reports that since the circumstances had already been accounted for in the 2016 report, there was no further comment.

40.The police reports appear to become shorter and shorter, which is nevertheless understandable because the matter has been raised repeatedly for many times. The fact that the applicant has rendered assistance and the police assessment on the matter would not differ merely due to lapse of time if there is no change in actual circumstances. While there is no change of factual circumstances, the police could hardly be blamed for handling the matter in the way they have done.

41.The police objected to the application for review on sentence in 2020, and their stance and reasons are as follows:

(1) The police agreed that the applicant had rendered assistance to the authority;

(2) The case was very serious;

(3) The applicant coldly despised the community and the law enforcement officers who maintained law and order (having shot two officers in due execution of their duties in the same case, with one died and one injured); and

(4) The sentence having been served by the applicant by that time had yet been sufficient to reflect the seriousness of the offence committed by him.

42.The applicant failed to put forward sufficient grounds to convince me of his criticism in relation to the police reports.

43.As to the other two prisoners who had assisted in the same case, their cases do not have much effect on this application because each case has its own special features and can hardly be compared.

The consideration and decision of the Review Board

44.In relation to the application against the Review Board, the applicant’s primary contentions include the following:

(1) The Review Board was influenced by the inaccurate and untruthful police reports. As a result, his application could not be proceeded in fair and just circumstances, which was a violation of the basic procedural requirement.

(2) The decision of the Review Board has frustrated the applicant’s “substantive legitimate expectation” because not all the facts related to him had been taken into account by the Review Board. Had there been sufficient consideration, a special assessment report should have been requested for his case.

45.In respect of allegation (1), first, I have already rejected the criticism levelled at the police reports by the applicant. Even though the applicant has criticized the 2016 report, it did clearly enable the Review Board to understand the fact that the applicant had testified against the person who had solicited him to commit crime. In any event, in the 2012 meeting, the Review Board unanimously recognized and accepted that the applicant had rendered assistance to the police and indicated that it would remain one of the considerations listed in any review on sentence in future.[28] It can be seen from the letters of the Review Board informing the applicant of the result of the reviews in 2012, 2014, 2016 and 2018 that the Review Board had indeed considered the fact that the applicant had rendered assistance to the authority.[29] This allegation can hardly be established.

46.The applicant said that the composition of members of the Review Board in 2012 and 2020 was different, and hence, in each and every reviewing hearing on the sentence, it was necessary to enable the members to understand the nature and details of the assistance provided by the applicant.

47.I am satisfied that the Review Board would consider all materials of each application for review and would not just refuse to look into or pay any regard to the previous reports which the police had made clear as relevant in their report.

48.According to the information provided by the Review Board, in respect of their decision, it was due to the very nature and gravity of the offence committed by the applicant that it came to the view that the length of sentence served by the applicant had yet been sufficient to reflect the seriousness of his offence, and therefore no recommendation would be made to the Chief Executive to substitute a determinate sentence for his indeterminate sentence[30]. This determination can hardly be described as unreasonable and there is no mistake in law.

49.For allegation (2), the applicant said that despite the recommendation made by the CSD in three reports[31], the Review Board did not request any special assessment report, which was not fair and also breached his legitimate expectation.

50.After considering the principles under section 8 of the Ordinance and section 2 of the Regulation, the Review Board may by reference to the usual review report, psychological report, psychiatric report and other information relevant to the prisoner, decide whether or not they would make a recommendation to the Chief Executive in relation to a review of sentence. Therefore, requesting for a special assessment report is not a prerequisite for the Review Board to recommend a remission of sentence.

51.The Review Board indicated[32] that the relevant procedural guidelines of the Review Board are: “If a prisoner has performed exceptionally well and is likely to merit a recommendation for sentence remission, or for any reason the Review Board wishes to obtain more information about the prisoner, the Review Board may request the CSD to provide a special assessment report instead of the normal review report, consisting of a more detailed report from the superintendent of the prison, a psychological report and a psychiatric report”.

52.Generally speaking, the Review Board has to accept that the sentence already served by the prisoner has been or is going to be sufficient before they have reasonable ground to consider asking for a special assessment report for the prisoner’s next review on sentence. The main reason that the Review Board asks for a special assessment report is for obtaining information about the prisoner’s mental state, psychological state and risk of re-offending so as to assess if there would be risk caused to the public at large or the prisoner himself in case he is released.

53.Even if the CSD has suggested in their report to the Review Board that a special assessment report should be obtained, such suggestion serves as a reference only, which the Review Board is not obliged to follow. The Review Board has the final say on whether a special assessment report is to be obtained.

54.In respect of the applicant’s case, it was the view of the Review Board that the sentence served was not sufficient and hence in the last review meeting it was decided that no special assessment report would be obtained for the applicant. Even in the next review on sentence (ie around July 2022), no special assessment report but only a clinical psychological report would be obtained for the applicant for reference purposes.

55.Having considered the circumstances as a whole, I do not see that the decision in question made by the Review Board was unlawful or unreasonable.

56.The applicant has raised the issue of legitimate expectation, which the 2^nd putative respondent said was just his wishful thinking based on the following wrong assumptions:

(1) the Review Board would definitely call for a special assessment report in the next review on his case after considering all the facts related to him;

(2) the content of a special assessment report would be favourable to him;

(3) other relevant factors are also in his favour.

57.In Tong Yu Lam v The Long-Term Prison Sentences Review Board[33], the court said:

“A mandatory life prisoner should know that, in principle, he has forfeited his liberty for the rest of his days. He knows the nature of his sentence. He can have no expectation for release within a particular time. [Even] if he has any expectation it is only that, at appropriate times and in an informed manner, executive clemency will be considered.”[34]

58.In A v Long-Term Prison Sentences Review Board & Others[35], the court stated[36]:

‘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 clear to the Board 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 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. In other words, the “sufficient” period envisaged under s 8(c) is not the period that would justify the applicant to be released. It is only the threshold (or triggering) period that would justify or entitle the applicant to be “considered” for early release. If that threshold period has not even been reached, the Board shall not even consider whether he could be released early. It is only after this period has been reached that the Board would consider, whether and, if so, what length of sentence the applicant shall further serve before he could be released.

30. It is clear from the wordings of the Decision (quoted above) that the Board’s primary reasons for not making a recommendation to the Chief Executive are again two folds:

(1) the offence that the applicant committed was very serious; and

(2) the period that the applicant had served was insufficient in all the circumstances.

31. It cannot be disputed that murder is one of the most serious crimes in our criminal law books. Furthermore, it can be seen from the background that the killing committed by the applicant was indeed a very gruesome one. It was a premeditated group attack on an unarmed civilian. Very serious bodily harms were inflicted. More importantly, the applicant was the mastermind behind the killing. In our view, one must never forget, absent in this kind of review hearing is the victim’s view.

32. Thus, on a proper and objective reading of the reasons, even after taking into account of the applicant’s good behaviour and assistance that had been rendered to the police, in light of the very serious nature and circumstances of his offence, he had not served a sufficient length of sentence to justify a consideration of an early release.’

59.The Court of Appeal had the following observation in Nancy Ann Kissel v Long-Term Prison Sentences Review Board[37]:

“61. … on each review the Board must consider the question of sufficiency by reference to all the circumstances, giving due regard in particular to the nature of the offence. Put another way, the nature of the offence is a particular but not the only circumstance that the Board must take into account in assessing the sufficiency or otherwise of the part of the prisoner’s sentence already served. Other than the nature of the offence, all circumstances pertaining to the prisoner, including rehabilitation and risk, are liable to change from time to time. That being the case, the Board must have regard to the prisoner’s current circumstances as at the time of the review in assessing the sufficiency of his sentence already served.”[38]

60.In my view, the applicant’s allegation of breach of legitimate expectation can hardly be established. The Review Board’s decision of not calling any special report was a determination made in accordance with the law and in view of the circumstances in the present case, it would be difficult to say that it is unreasonable. The sentences of two other prisoners in the same case were remitted but their circumstances differed from those of the applicant in many ways.

61.The applicant also criticized the Review Board for not giving sufficient regard to his young age at the time of the offence. He said that he was initially incarcerated in Pik Uk Correctional Institution until he was transferred to the Stanley Prison at the age of 21, which he said clearly showed that the executive authorities had classified him as a juvenile offender.

62.It is true that the Review Board, as alleged by the applicant, did not expressly mention the applicant’s age in the letters. In the circumstances of the present case, especially after many previous reviews, the Review Board could not possibly fail to grasp the fact that the applicant was only 18 at the time of the offence.

63.There is no sufficient reason in the case to cause me to suspect that the Review Board had failed to fully understand or give adequate consideration to the assistance provided by the applicant and other materials relevant to him. The determination and conclusion made by the Review Board were not unlawful, and were not unreasonable in the public law sense. The Review Board has dealt with the application in compliance with the statutory provisions and the principles established by case law. The applicant has been given ample chance to make representations before the hearing, and the account given to him was sufficient.

Conclusion

64.The Court of Final Appeal said in Po Fun Chan v Winnie Cheung[39] :

(1) The requirement for leave to apply for judicial review was an important filter to prevent public authorities from being unduly vexed with unarguable challenges and from always facing the uncertainty as to the validity of their decisions；and

(2) only a reasonably arguable claim which enjoyed realistic prospects of success should be given leave to proceed.

65.The applicant has failed to put forward sufficient argument to enable me to conclude that: (1) the report provided by the Commissioner contained what was alleged by the applicant and would bring forth the improper influence he alleged to the Review Board; and (2) the decision made by the Review Board and its decision-making process were unlawful or unreasonable in the public law sense. Since the applicant has failed to show that the issues he raised contain any reasonably arguable ground for a judicial review, the application for leave to apply for judicial review is refused.

Ms Katherine Chan, Government Counsel, of the Department of Justice, for the 1^st Putative Respondent

Messrs Wilkinson & Grist, for the 2^nd Putative Respondent

The Applicant, unrepresented, appeared in person

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.