Ma Chun Man v. Commissioner of Correctional Services
Read the full judgment text of HCAL 979/2024 on BabelCite. This High Court CFI judgment was delivered on 6 December 2024.
1. The present application is about the recent amendments introduced by the Safeguarding National Security Ordinance (“ SNSO ”) [1] to the Prison Rules (“ PR ”) [2] and the Post-Release Supervision of Prisoners Ordinance (“ PRSPO ”) [3] which raise the threshold for prisoners convicted of offences endangering national security (“ OENS ”) to obtain remission of sentence or early release. The Applicant (“ Mr Ma ”) is a prisoner so affected and he now seeks leave to challenge by way of judicial rev
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HCAL 979/2024 [2024] HKCFI 3531 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 979 OF 2024 _________________
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_________________ J U D G M E N T _________________ Introduction 1.The present application is about the recent amendments introduced by the Safeguarding National Security Ordinance (“SNSO”)[1] to the Prison Rules (“PR”)[2] and the Post-Release Supervision of Prisoners Ordinance (“PRSPO”)[3] which raise the threshold for prisoners convicted of offences endangering national security (“OENS”) to obtain remission of sentence or early release. The Applicant (“Mr Ma”) is a prisoner so affected and he now seeks leave to challenge by way of judicial review the constitutionality of the amendments as well as the legality of the decisions of the Putative Respondent (“the Commissioner”) which he says were involved in his case. Brief facts 2.Shortly stated, Mr Ma’s case is as follows. Since 24 November 2020 he had been remanded in jail custody pending trial on a charge of incitement to secession[4]. Upon conviction after trial[5], on 11 November 2021 he was sentenced to an imprisonment term of 5 years and 9 months. He failed in the subsequent appeal against conviction but succeeded in the appeal against sentence. As a result, his sentence was reduced to 5 years’ imprisonment[6]. 3.Having served about two-third of the sentence so reduced, Mr Ma was originally hopeful that his sentence would be remitted and that he would be released early. That, he said, was based on: (i) the common practice or “custom” of the Correctional Services Department (“CSD”) routinely granting one-third remission to inmates on the ground of their “industry and good behaviour”; and (ii) a specific representation made to him by Superintendent Lo[7] on 24 February 2024 that he would be released on 25 March 2024[8]. 4.However, the aforesaid hope was dashed as a result of the enactment of the SNSO which came into operation on 23 March 2024, just two days prior to his expected date of release. According to Mr Ma, in that morning his scheduled “meeting before release” with the CSD was cancelled. Instead, he was taken to see two clinical psychologists for assessment. Afterwards, he was told that his remission would not be granted (“the Reversal”) and that he would remain in prison for at least another year until the annual review of the Reversal. He was given no reasons for that sudden turn of events. Moreover, without any request from him for medical assistance, he was sent to a prison hospital. There, Mr Ma stayed for the rest of the day and also the following day. This arrangement was made apparently out of the concern as to what he might do to himself. 5.On 24 March 2024, whilst still in hospital Mr Ma was given a notice (“the Notice”[9]) purporting to formally inform him of the Reversal. Mr Ma signed on the Notice as requested but was not given a copy of that document. Mr Ma was told that he could submit a written representation to the Commissioner. That he did first thing in the following morning without having been told what allegations were made against him and what case he was required to meet. After the written representation was submitted, there was neither a reply nor an arrangement for him to orally present his case. Although he was given an undated summary of considerations (“the Summary of Considerations”[10]) prepared by a body titled “the Board of Assessment on Person in Custody Having Committed Offence Endangering National Security” (犯危害國家安全罪行的在囚人士評審委員會) (“the Assessment Board”), that was only after he had (at the request of a CSD officer) written a statement[11] saying that he had “no further representations to make” in response to the Summary of Considerations. 6.On 4 June 2024, the solicitors representing Mr Ma wrote to the Commissioner seeking, inter alia, all materials relied upon for the Reversal and the Notice. The Commissioner gave a substantial reply on 21 June 2024 refusing the solicitors’ request for disclosure. The decisions challenged 7.By the present application[12], Mr Ma seeks to challenge the following decisions of the Commissioner:
8.Upon query by this court as to how and to what extent the success or otherwise of the challenge against decision (c) above would assist the Applicant, Mr Steven Kwan[15] acknowledged that that challenge alone would not be determinative of the present application. Grounds of review 9.The grounds now relied upon by the Applicant can be summarised as the following complaints[16]:
Mr Kwan categories Ground 1 and 2 above as “rule challenges” and Mr Wong categories the others as “decision challenges”: see HKSAR v Ng Ngoi Yee Margaret & Ors[17]. Remedies sought 10.The Applicant seeks: (i) a writ of certiorari to bring up and quash the Reversal and/or the Release Decision; (ii) declaratory reliefs; (iii) an order of mandamus for his immediate release; (iv) damages (to be assessed); and (v) interests. Rolled-up hearing 11.On 5 July 2024, this court, having read the Applicant’s Form 86 and the supporting documents, directed a rolled-up hearing and gave directions on the filing of affirmations, hearing bundles and submissions[18]. The Summonses 12.After the parties had filed their first round of affirmations[19] as per the aforesaid direction, it became apparent that a number of factual disputes have emerged and the major ones included the following:
13.In view of the aforesaid, the Putative Respondent took out a summons[21] seeking leave to file the 2nd Affirmation of Superintendent Lo (“Lo 2”[22]) with a view to deal with the aforesaid factual disputes and to exhibit his official records (“Penal Entries”[23]) which he says would support his version. 14.There was also a summons[24] taken out by the Applicant seeking leave to file the 3rd Affirmation of Mr Ma (“Ma 3”[25]) responding to the assertions in Lo 2 and to cross-examine Superintendent Lo. The Applicant’s summons was objected by the Putative Respondent. In order to ascertain whether and how the Applicant’s application for cross-examination would affect the estimated length of the hearing, the court wrote to the Putative Respondent[26] and asked whether there would be a similar application from them to cross-examine Mr Ma. The legal representative of the Putative Respondent replied in writing[27] expressing their stance that the factual disputes would not be of assistance to the court in disposing any of the Applicant’s grounds of review and on that basis they would not seek to cross-examine the Applicant. 15.At the hearing, having heard submissions from both sides, this court decided to admit Lo 2 and Ma 3 de bene esse. 16.Concerning the Applicant’s application to cross-examine Superintendent Lo, there was no dispute on the applicable principles, namely:
17.Mr Kwan submitted that the cross-examination sought was necessary for the court to resolve the factual disputes pertaining to two of the Applicant’s grounds of review, namely “legitimate expectation” (Ground 3) and “procedural irregularities” (Ground 5) and that there had not been any inordinate delay. Mr Mike Lui, SC for the Putative Respondent[30] submitted the otherwise and stressed that the factual disputes had no relevance to the proper resolution of the two grounds. Mr Lui confirmed, however, that even if the court allowed the Applicant’s application for cross-examination, the Putative Respondent would not seek to cross-examine Mr Ma. 18.Having heard counsel submissions, this court allowed the Applicant’s application for cross-examination but only insofar as it related to the ground of “procedural irregularity”. Moreover, parameters were set so that the cross-examination was to be restricted to what took place between 23 March and 25 March 2024. I said that reasons for ruling would be given in due course. This, I am going to do when dealing with Ground 3 and Ground 5 respectively. 19.Before turning to the grounds of review, however, it is necessary to give a broad outline of the statutory schemes for remission of sentence and early release both before and after the SNSO as well as to determine, on the material placed before this court, how the pre-SNSO scheme had worked in practice. Statutory scheme pre-SNSO 20.Before the amendments introduced by the SNSO, remission and early release were governed by the PR and the PRSPO respectively. The relevant parts of r69 of the PR provided:
21.On the other hand, the relevant sections of the PRSPO provided as follows:
22.Based on the above, in the pre-SNSO era, the Commissioner might grant a remission of sentence to a prisoner on the ground of “industry and good conduct” subject to the following conditions:
23.If the prisoner was one to whom PRSPO applied, then the Commissioner would be duty bound to first refer his/her case to the Supervision Board for consideration: s6(3), PRSPO. The Supervision Board might, if it considered that the prisoner should be subject to a period of supervision following early release, order the prisoner’s early release subject to a supervision order: s6(1), PRSPO. However, if the Supervision Board decided not to make a supervision order, it had to inform the Commissioner of that: s7(3) of the PRSPO. It was only then that the scheme under r69 of the PR would be triggered: r69(4B) of the PR. 24.As to what categories of prisoners would be subject to the PRSPO scheme, that was governed by the following provisions:
25.Section 2 of the Post-Release Supervision of Prisoners Regulation (Cap. 475A), which was made under s23 of the PRSPO said:
26.Turning to Schedule 1, the offences covered (before the enactment of the SNSO) could broadly be divided into the following categories:
27.As pointed out by Stock J (as he then was) in Lui Tat Hang Louis v The Post-Release Supervision Board[33], the nature of the specified offences are in many instances of a kind which, for a variety of reasons, carry a particular recidivist risks - triad offences or offences which tend to be triad related where, in the absence of fruitful support, the danger of falling back into bad company upon release may be real; or sexual offences where a particular offender might have a disposition to an offence of that kind. The scheme was and was intended to be, rehabilitation-oriented, to assist discharged prisoners to re-integrate into society and to discourage them from re-offending. 28.Thus, it is clearly the legislative intent that in relation to the above categories of prisoners, if they were sentenced to two years’ imprisonment or more, then they should not be granted any remission under the PR scheme by the Commissioner unless and until the Supervision Board had decided that a period of post-release supervision would not be necessary and it was only then that the PR scheme could be triggered. This is further strengthened by the exclusion of the categories of prisoners from the PRSPO scheme:
For those prisoners, a supervision order pursuant to Part 2 of the PRSPO would clearly be unnecessary. 29.For the sake of completeness, it is necessary to point out that in case of an early release under the PRSPO scheme, the Supervision Board has the power, pursuant to s13(1), to suspend a supervision order if they are satisfied that:
In either (a) or (b), it would be mandatory for the Commissioner to “recall the person to prison and reimprison him” for the period of the suspension, or for such shorter period as may be appropriate having regard to any remission granted pursuant to r69 of the PR in respect of the period of reimprisonment: s13(2), PRSPO. As the power for the Supervision Board to suspend a supervision order can be exercised even before the prisoner has actually committed any arrestable offence, this power is plainly “preventive” in nature. 30.The Supervision Board in discharging its function, including considering a supervision order and its suspension, is required, under s5(2) of the PRSPO, to have regard to:
31.It was held in Lui Tat Hang Louis, ante[37] that the powers conferred on the Supervision Board to impose supervision orders and to recall prisoners to prison under prescribed circumstances did not constitute a heavier penalty within the meaning of ICCPR Article 15 (or BOR 12(1)), and the provisions of the Ordinance were accordingly not in breach of BL 39. The PRSPO scheme itself did not result in an increase in the term served in custody, and supervision conditions, if imposed at all, were not directed at, or motivated by any consideration of, an appropriate punitive element. Controls and limitations on the lifestyle and habits of the released prisoner and the right to recall for breach of a supervision order were adjuncts to rehabilitation and were tools by which to render the scheme effective. The power to recall in anticipation of a likely offence was preventive. The act of recall was not an act of, or akin to, sentencing for the original offence, or an enhancement of the penalty applicable for the offence. Every prisoner still remained eligible for release after serving two-thirds of his term. To all of the above, I respectfully agree. 32.Returning to the PR scheme, since the Commissioner’s power to grant remission pursuant to the r69 scheme was couched in discretionary terms, prisoners would not have a right to remission even if their “industry and good behavior” were established and the aforesaid conditions were satisfied. As observed in Lui Tat Hang Louis v The Post-Release Supervision Board, ante[38]:
Practice of CSD pre-SNSO 33.The Court of Appeal in Wong Tak Wai v Commissioner of Correctional Services[39]accepted that remission under r69 was discretionary and it did not confer on a prisoner any legal right or entitlement. On the other hand, it also pointed out that:
34.This is not to say that prisoners in Hong Kong would necessarily have a similar legitimate expectation for early release. That would depend to a certain extent on the actual practice of the CSD regarding remission and/or early release. In this regard, Mr Ma is obviously not a position to give evidence on the general practice of the CSD. Mr Kwan, however, prays in aid certain passages from local judgments showing that the courts have always taken judicial notice of what he calls the general and routine practice of the Commissioner to grant prisoners a remission of about one-third of the length of the sentence imposed by the courts, subject to the prisoners’ “industry and good conduct” before the coming into effect of SNSO. I shall in due course come back to the case authorities relied upon by Mr Kwan. 35.Mr Lui, on the other hand, submits that the case authorities relied upon by Mr Kwan do not in fact support the Applicant’s proposition. Besides, there is no evidential basis for the existence of the practice as asserted by the Applicant. To the contrary, there is the affirmation evidence of both Superintendent Fung[40] and Superintendent Lo on the practice of the CSD which, Mr Lui describes as “uncontradicted”. 36.In dealing with the aforesaid arguments, I shall consider first the affirmation evidence of the Putative Respondent and then the effect of the case authorities relied upon by the Applicant. The affirmation evidence 37.According to the affirmations of Superintendent Fung and Superintendent Lo, r69 of the PR has effect subject to any disciplinary award or forfeiture of remission. If a prisoner breaches any prison discipline, the Superintendent of the prison institution (“HoI”) may order punishment in accordance with r63 of the PR, including forfeiture of remission not exceeding one month, or he may refer the prisoner’s case to the Commissioner who may order forfeiture of remission not exceeding three months. 38.As a matter of practice, on reception of each prisoner (including those who serve a sentence for an OENS), CSD would record his/her sentence period in its system. The “latest date of discharge” (“LDD”) and the “earliest date of discharge” (“EDD”) would be computed automatically for CSD’s reference only, without conferring any right or entitlement on the prisoner. 39.In Lo 1, the court’s attention is drawn to the following[41]:
40.According to Lo 1, prisoner’s cases are kept under review during their incarceration, particularly in the running up to the computed EDDs. It is CSD’s internal practice that the HoI will interview all PICs on the day preceding the computed EDD and:
As one purpose of such interviews is to ensure that there are ongoing reviews of a PIC’s case, the interviewer will, before the interview, review the computation of EDD to confirm the computed EDD, check if there is any outstanding criminal charge(s) and offences against prison discipline under r61 of the PR against the PIC. These matters will affect the PIC’s length of incarceration and his status under custody (e.g. if there is outstanding criminal charges against a PIC, consideration has to be given whether he is to be continued to be remanded in custody as a person awaiting trial after release). During the interview, the interviewer will listen to and record any complaint or request that the PIC may have and take any actions considered necessary. In order to incentivise good conduct and industry during incarceration, the interviewer will also inform the PIC of the computed EDD, and remind him/her that the computed EDD is subject to his/her good conduct and industry, and to any forfeiture of remission under r63(1)(c) of the PR. 41.Specifically, in Mr Ma’s case, his EDD as computed automatically by the system at the time of his admission to Lai Chi Kok Reception Centre (“LCKRC”) was 23 March 2024 and was changed to 25 March 2024 upon his admission to Tong Fuk, as two days of remission was forfeited as mentioned above. His LDD has remained 21 November 2025 throughout incarceration. According to Lo 1, Mr Ma was issued with an identity tag, with his computed EDD and LDD printed thereon, on each of his admission to LCKRC, Stanley Prison and Tong Fuk following his conviction. The explanation stated in paragraph 39(b) above was also given to Mr Ma on his admission to Tong Fuk. Upon the change of practice in February 2023 in Tong Fuk as aforesaid, a replacement identity tag was issued to Mr Ma which did not contained information of the computed EDD, LDD, his conviction or sentence. Evaluation 42.I bear in mind that both Superintendent Fung and Superintendent Lo stressed that: (1) as a matter of law and principle prisoners must serve their full term of sentence passed by the court and they do not enjoy any right or entitlement to remission; and (2) the Commissioner has the discretion whether or not to grant remission to a prisoner based on the “industry and good conduct” ground. However, in my judgment, their evidence does not provide a full answer as to whether there was in existence a practice on the part of the CSD routinely granting one-third remission to prisoners on the ground of “industry and good conduct”. My reasons are as follows:
43.Having fully considered the contents of all the affirmations of Superintendent Fung and Superintendent Lo, including Lo 2, I have come to the view that their evidence does not negate the existence of the practice as asserted by the Applicant. This, of course, does not necessarily mean that such a practice existed. On that note, I now turn to the following topic. Judicial notice 44.When judicial notice of a fact is taken, a court may accept that fact as proven without requiring proof of it in the normal way. The following legal principles taken from Phipson on Evidence (20th edition) on “judicial notice” is not in dispute:
45.The sources consulted by the judge may include reports of previous cases, certificates from various officials, works of reference, and oral statements of witnesses: Cross and Tapper on Evidence (13th edition)[46]. In order not to lengthen this already lengthy judgment, I do not intend to go through all of the cases referred to by Mr Kwan. It suffices to say that I have considered all of them. In evaluating the following examples, I bear firmly in mind the following passage in Cross and Tapper On Evidence, ante[47]:
46.In the passage of Stock J in Lui Tat Hang Louis already quoted above, whilst emphasising that remission was always a matter of discretion so that it was not an entitlement, His Lordship also said that “it would be more accurate to say that, in practice, prisoners who have been industrious and of good behaviour have in fact earned remission of one-third or up to one-third.” Therefore, His Lordship at least did not rule out the existence of a practice as the Applicant now asserts. 47.After considering the cases cited by Mr Kwan, I note first that the one-third remission for good behaviour has been taken as a relevant factor in applications for bail pending appeal. For example, in R v Tam Chung-shing[48], Cons VP (as he then was) was concerned about the time that the applicants would have spent in custody before the appeal could be heard. His Lordship observed:
48.Secondly, the remission has been consistently taken by our highest court as a relevant factor in deciding whether a retrial should be ordered in case of a successful conviction appeal. For example, in Lee Fuk Hing v HKSAR[49], Bokhary PJ explained the court’s reasons for refusing a retrial as follows:
49.In HKSAR v Zhou Limei (No 2)[50], Ma CJ, giving the judgment of the Court of Final Appeal, had the following to say (footnotes omitted):
50.Similarly, in HKSAR v Liang Yaoqiang (No 2)[51], in refusing to order a third retrial for a murder charge, the Court of Final Appeal said (footnote omitted):
51.Thirdly, the remission is a factor to be taken into account in applications for review of sentence and sentence appeals alike. For example, in Secretary for Justice v Leung Hiu Yeung & Ors[52], the Court of Final Appeal held that the Court of Appeal was justified in substituting the defendants’ respective community service orders with the sentences of imprisonment, but that their sentences should be reduced to the length of time that each defendant had already served in prison so as to allow their immediate release. In so doing, the Court of Final Appeal noted (footnotes omitted):
In Secretary for Justice v Wong Yin Tak & Ors[53], which was a review of sentence, Keith JA noted,
52.In HKSAR v Jin Bin[54], the judge when ordering that the sentence she passed was to run concurrently with a previous 3-month sentence imposed by another court for another offence, was unaware that the previous sentence had already been served so that a concurrent sentence was no longer possible. Prosecuting counsel accepted in the appeal that the defendant had been of good behaviour during his period in CSD custody. He explained that the one-third remission for good conduct was not available due to the fact that the defendant had been remanded in custody for more than 3 months by the time he was sentenced for the previous offence. In conceding the appeal, prosecuting counsel submitted that in the circumstances the defendant in fact served the equivalent of a sentence of 4.5 months’ imprisonment for the previous offence. Zervos JA, giving the judgment of the Court of Appeal, allowed the appeal and said:
53.In HKSAR v Ko Wai Shing[55], Macrae VP, giving the judgment of the Court of Appeal, was prepared to assume that a one-third remission would have been given to the defendant for good behavior in the absence of information to the contrary. 54.Fourthly, whilst trial courts do not have regard to the question of remission in imposing sentence, the one-third remission may become relevant after the defendant’s original conviction was substituted on appeal. The case of HKSAR v Leung Wai Kit[56]was such an example. In that case, the Court of Appeal substituted a conviction of simple possession for the defendant’s original conviction of trafficking. As a consequence, the Court of Appeal said:
55.It is pertinent to note that in all of the above examples that the courts worked on the premises (without seeking the relevant evidence) that, barring any forfeiture for disciplinary offences, a full one-third remission could be reasonably expected. This, the courts took as a “well-known” fact or common knowledge among legal practitioners as to what in “reality” would happen, irrespective of the clear recognition that remission was discretionary. Therefore, it is apparent that the courts had in fact taken “judicial notice” of what they considered to be the practice of the CSD, even though they did not expressly say so. 56.Having considered the submissions of the parties and the evidence before me, on balance, I am prepared to proceed on the footing that there had been, prior to the SNSO, a general practice of the CSD so that prisoners who had served two-third of their sentence and were considered to be of good behaviour could expect a remission of sentence or an early release (with a supervision order), subject to any forfeiture ordered pursuant to r63 of the PR. However, as can be seen in due course, this is not determinative of Ground 2. Amendments by the SNSO 57.Since 23 March 2024, significant amendments were made by the SNSO to the statutory scheme concerning remission and early release. According to the relevant Legislative Council Brief[57] issued by the Department of Justice and the Security Bureau on 8 March 2024, the policy objective behind the amendments was stated as follows (footnote omitted):
58.In response to a question asked in the Legislative Council Bills Committee Meeting held on 13 March 2024, the Law Officer made the same point and elaborated as follows[58]:
59.The above explanation was noted by the Bills Committee in its Report[59]:
60.In view of the above, it is clearly that the legislative intent to impose a more stringent condition for the early release of prisoners serving sentences for OENS which is over and above the requirement of “industry and good conduct”. This policy objective is reflected in the following new sections added to:
61.The effects of the above amendments can be summarised as follows. Firstly, the PRSPO scheme has now been extended to cover OENS prisoners who were sentenced to 2 years’ imprisonment or more. As a result, the Commissioner has to decide first whether early release of a prisoner who is in this category would not be contrary to the interests of national security (“the NS Test”): s6(3A) of the PRSPO. Even if the Commissioner is so satisfied, he still cannot not in law granted any remission unless and until he had been informed by the Supervision Board that no supervision order is to be made in respect of that prisoner: r69(4B) of the PR. 62.Secondly, if the Commissioner finds that the NS Test is not passed, then he cannot in law refer the prisoner to the Supervision Board for consideration. It follows that s7(3) of PRSPO would not be triggered either, as the Supervision Board would then not be in the position to “decide” whether or not to make a supervision order. On the other hand, it also means that the remission scheme under PR remains inapplicable, as the Commissioner would then not be informed that no supervision order would be made in respect of that prisoner. Simply put, once the Commissioner has come to the assessment that the NS Test is not passed in respect of an OENS prisoner to whom the PRSPO applies, he would have no option except to review his “decision” annually. 63.Last but not least, there are also the following over-arching provisions in s8 of SNSO:
64.It can hardly be disputed that the Commissioner is a person on whom a function is conferred by the Prisons Ordinance and the PRSPO with and therefore in the exercise of his function he has a duty to safeguard national security. Furthermore, in the course of his assessment and determination of the NS Test, the Commissioner must regard national security as “the most important factor” and give appropriate consideration to it accordingly. The implication of the latter could be far-reaching, as it affects not only OENS prisoners but also other categories of prisoners. However, since this case does not concern other categories of prisoners, in the absence of any detail submissions from counsel, I need not and shall not express any definite view on this point. The “Decisions” challenged 65.Having discussed the legal effect of the changes made to PR and PRSPO, I now turn to the “decisions” that Mr Ma seeks to challenge, namely: (1) “the Reversal”; (2) “the Release Decision”; and (3) “the Non-disclosure Decision”. 66.As regards (1), according to Mr Ma[63], he had been informed specifically on 24 February 2024 by the HoI of Tong Fuk that he would be released on 25 March 2024. On the other hand, according to Superintendent Lo, the HoI was away from office on that day and therefore it fell on him as the deputy HoI to interview Mr Ma. He informed Mr Ma that his then computed EDD was 25 March 2024, which was subject to “industry and good conduct” and the Commissioner’s discretion, and that might change until the day he was actually discharged.[64] 67.In assessing the contradictory accounts of Mr Ma and Superintendent Lo, I bear in mind that Mr Ma had not been cross-examined, as Mr Lui chose not to do so. However, having carefully considered the evidence, I do not accept the existence of “the Original Decision”. My reasons are as follows:
68.Because of the above, insofar as the Applicant challenge is based on the existence of the “the Reversal”, it must fail. Moreover, my rejection of Mr Ma’s account on 24 February 2024 also bears on the credibility of his evidence on Ground 5 (procedural unfairness) which I shall come to in due course. 69.For the sake of argument, even assuming that I were wrong about “the Original Decision”, after 23 March 2024, as regards a prisoner like Mr Ma (who was sentenced to more than 2 years’ imprisonment for an OENS), the Commissioner as a matter of law simply has no power to grant him/her remission without having first referred his/her case to the Supervision Board for consideration: s69(4B) of the PR. 70.As regards (3), as aforesaid Mr Kwan confirmed in court that the success or otherwise of the challenge against “the Non-Disclosure Decision” is of itself not determinative of the present case. This may explain why little argument was advanced in this regard in the Applicant’s written and oral submissions. With respect, Mr Kwan is right not to place much reliance on “the Non-Disclosure Decision”, as it was made subsequent to “the Release Decision” and therefore did not affect the validity of the latter. 71.Therefore, I agree with the submission of Mr Lui that what really matters in the present case is the challenge to what the Applicant labels as “the Release Decision”, which in fact was the non-referral by the Commissioner of Mr Ma’s case to the Supervision Board for consideration of early release. This leads me to the following topics. The Assessment Board and its recommendation 72.The following information about the establishment and work of the Board is taken from Fung 1 which is largely not in dispute[65] and which I accept as true:
73.On 23 March 2024, the Assessment Board considered Mr Ma’s case in order to make their recommendation to the Commissioner, specifically, whether the Commissioner should be satisfied that an early release of Mr Ma would not be contrary to the interests of national security, and refer his case to the Supervision Board for its consideration of early release. The Assessment Board noted the following matters[66]:-
74.Based on the above, the Assessment Board came to the view that: (i) the Commissioner should not be satisfied that Mr Ma’s early release would not be contrary to the interests of national security; and (ii) Mr Ma’s case should not be referred to the Supervision Board for consideration of early release upon supervision. The matters referred to above as well as the Assessment Board’s recommendation to the Commissioner were contained in “the Summary of Considerations”[68] given to Mr Ma, even though there are factual disputes as to when and in what circumstances he was given that document. That, I will come to with dealing with Ground 5 (procedural unfairness). The Commissioner’s decision 75.There was exhibited to Fung 1 the CSD’s record of the “Commissioner’s Decision”[69] concerning Mr Ma’s case dated 25 March 2024 and signed by the Commissioner. Its reads as follows:
76.In my view, the careful choice of words by the Commissioner is noteworthy. Rather than saying that he “decided” not to refer Mr Ma’s case to the Supervision Board, he said he “must not” do so. That, he said, was “according to” s6(3A) of the PRSPO. This is consistent with my interpretation of the law that once the Commissioner decided that a prisoner had failed in the NS Test, he had no discretion in the matter and was duty bound not to refer the prisoner’s case to the Supervision Board. 77.Based on the Commissioner’s Decision (the authenticity of which was not challenged), I accept as a fact that:
Operation of s6(3A), PRSPO 78.It would be convenient at this juncture to deal with the following points raised by Mr Kwan concerning the PRSPO scheme as amended by the SNSO, namely:
In my judgment, the answers to (a) and (b) above are both in the negative. My reasons are as follows. As regards (a) 79.The Applicant’s contention that there is a burden of proof on the prisoner concerned is not supported by the language of s6(3A) of the PRSPO. Moreover, its wording and structure closely resembles that of the proviso to Article 42 of the National Security Law (“NSL 42”):
80.As regards NSL 42, the Court of Final Appeal in HKSAR v Lai Chee Ying[70] said:
81.Whilst the aforesaid was said in the context of a bail application, I am of the view that the same can be said of the NS Test which, similar to the determination of bail, is basically a risk assessment. The NS Test is about the national security risk may arise upon the early release of the prisoner concerned. That is why the definition of “national security” refers to “danger” (危險), “internal or external threats” (內外威脅) and “capability to maintain a sustained status of security” (保障持續安全狀態的能力). In my judgment, the NS test entails a consideration of all relevant factors pertaining to the prisoner under consideration including those referred to in Fung 1[71]:
As such, I agree with Mr Lui’s submission that the Commissioner in his assessment of the NS Test is not dissimilar to a judge considering a bail application pursuant to NSL 42 in that both of them are tasked to perform, as Mr Lui put it, an exercise which is “evaluative and predictive”. 82.This court’s attention is also drawn to Secretary of State for the Home Department v Rehman[72], which was about the Secretary of State exercising a power to deport a person on the ground that it would be conducive to the public good as being “in the interests of national security”. In the judgment of the House of Lords, a distinction was drawn between any specific facts on which the Secretary of State relied (which should be proved on the ordinary civil balance of probability) on the one hand and his judgment or assessment on the other as to whether it was conducive to the public good (on “the interests of national security” ground) that someone should be deported. Regarding the latter, Lord Hoffmann (whose judgment Lord Clyde[73] and Lord Hutton[74] agreed) pointed out[75]:
83.In my judgment, the Commissioner’s determination of the NS Test is a holistic, predictive and evaluative exercise based on a consideration of all the relevant factors in which the concept of burden of proof is not particularly helpful. Therefore, I disagree with Mr Kwan’s submission that there is a “presumption” against referral to the Supervision Board and early release or that there was any legal burden on the prisoner concerned to rebut that presumption. As regards (b) 84.It has been consistently recognised by the European Court of Human Rights that it is always open to the legislature to change the early release provisions and that a distinction has to be drawn between a measure that constitutes in substance a “penalty” and a measure that concerns the “execution” or “enforcement” of the “penalty”: see, e.g., Del Río Prada v Spain[76]; and Kupinskyy v Ukraine[77]. Those cases reflect the principle that “inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights”: Soering v United Kingdom[78]. In the same vein, in Kafkaris v Cyprus[79] when considering whether the changes to the prison legislation had deprived prisoners serving life sentences of the right to remissions of sentence in violation of Article 7 of the Convention[80], the European Court of Human Rights held that the changes related to the execution of the sentence as opposed to the penalty imposed on the applicant, which remained that of life imprisonment. It explained that although the changes in the prison legislation and in the conditions of release might have rendered the applicant’s imprisonment harsher, these changes could not be construed as imposing a heavier penalty than that imposed by the trial court. It reiterated in this connection that issues relating to release policies, the manner of their implementation, and the reasoning behind them fell within the power of the contracting states to determine their own criminal policy. Accordingly, there had not been a violation of Article 7 of the Convention in that regard. 85.I bear in the forefront of my mind that concept of a “penalty” in the context of the ICCPR and BOR is “autonomous” and that a court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a penalty: Del Río Prada v Spain, ante. In law, context is everything. I do not consider the case authorities relied upon by the Applicant are of assistance in the present case. In Wong Tak Wai’s case, ante, the Court of Appeal was exercised to determine whether forfeiture of remission pursuant to r63 of the PR amounted to a “penalty” so as to engage Article 10[81] and Article 11(1)[82] of the Hong Kong Bill of Rights (respectively “BOR 10” & “BOR 11(1)”). For that purpose, the Court of Appeal[83]applied the following three criteria: (1) the classification of the offence under domestic law; (2) the nature of the offence; and (3) the nature and severity of the potential sanction. Furthermore, the Court noted that in a prison context, criterion (1) was not decisive to exclude the right to a fair hearing. As for the criteria in (2) and (3), they carried substantially greater weight than (1), and (3) was the most important. In the event, the Court of Appeal held that the distinguishing feature of a criminal penalty is its punitive character. Criminal penalties have been customarily recognised as comprising the twin objectives of punishment and deterrence. Leaving aside whether forfeiture of remission would amount to fresh deprivation of liberty, the court saw no reason to think this was not imposed for punitive reasons after a finding of culpability. It was in the above context that Kwan JA (with whom Stock VP and Andrew Cheung J agree[84]) found that a deprivation of liberty resulting from a forfeiture of remission was a “punishment” (footnote omitted):
86.Therefore, the context of Wong Tak Wai’s case was very different and it is distinguishable in that the non-referral of Mr Ma’s case (pursuant to the new s6(3A) of the PRSPO) was not predicated on any finding of culpability against him. Besides, the evidence before this court, which I accept, is that the non-referral was not direct at or for a penal element. This, of course, is not to say that Mr Ma did not enjoy a right to be heard in the determination of the NS Test. That, I will come to that when dealing with Ground 5 (procedural unfairness). 87.In my judgment, the starting point for consideration under this head is that remission of sentence is always, and remains, a matter of discretion so that a prisoner has no right to remission, be it one-third or less. As a matter of law, the sentence of Mr Ma was the one passed by court and the non-referral of his case to the Supervision Board did not of itself increase that sentence. As a matter of evidence, based on the materials before me, I am also satisfied that the non-referral under consideration was not directed at, or motivated by any consideration of, an appropriate punitive element. Rather, it was to give effect to “the most important consideration” of safeguarding national security. 88.As remarked by Stock J in Lui Tat Hang Louis’ case, it would not be an unreasonable exercise of discretion not to discharge a prisoner early if there was good reason to believe that a previously industrious person who had been of good behaviour was most likely to commit a serious offence shortly after his release. It was also held in Lui Tat Hang Louis that, the preventive act of recall (following the suspension of a supervision order) was an adjunct to rehabilitation and as a tool by which to render the PRSPO scheme effective. As such, it was not an act of, or akin to, sentencing for the original offence, or an enhancement of the penalty applicable for the offence. In my judgment, the aforesaid can also be said of non-referral pursuant to s6(3A) of the PRSPO in that:
89.This is no denying that remission or early release serves an important and useful measure which, if granted, are conducive to the reformation and social rehabilitation of prisoners: Ng King Tat Philip v Post-Release Supervision Board[85]. However, if neither a refusal to grant remission nor a recall to prison amounts to “punishment”, then I am unable to see why the non-referral of Mr Ma in the present case should be regarded as “punishment”. 90.Contrary to the submission of Mr Kwan, the statement of the Court of Appeal in R v Wong Pak Lam[86] to the effect that “the concept of preventive detention” had fallen into disuse does not, in my view, assist the Applicant. That statement was made in the context of a sentence appeal before the enactment of PRSPO and at the time when “there is certainly no legislation in Hong Kong along those lines”. Since the Applicant has conceded that the power to withhold referral for early release can be lawfully exercised for the purpose of protecting the public from serious harm, it can hardly be disputed that such harm must include national security risks as mandated now under s8(3) of the SNSO. 91.Similarly, the statement of the Court of Appeal in HKSAR v Chiu Wai Kan Vicken (No 2)[87]that “protection of the public cannot justify a sentence which constitutes mere preventive detention” is also not pertinent. The statement was made when the Court of Appeal was then dealing with the appeal against sentence of an accused whose conviction for murder had earlier on been allowed and a verdict of guilty of manslaughter on the basis of diminished responsibility substituted. In the present case, there can be no complaint by Mr Ma that his sentence of 5 years’ imprisonment (as reduced by the Court of Appeal) is not within the permissible range of sentence for his offence and its circumstances. 92.With all of the above in mind, I now turn to the grounds of review relied upon by the Applicant. Ground 1: “Prescribed by law” 93.Under this head, which is a “rule challenge”, Mr Kwan’s submissions can be summarised as follows:
As noted by Mr Lui, there is not a challenge based on the proportionality analysis as propounded in Hysan Development Co Ltd v Town Planning Board[88]. As regards (1) 94.For reasons which have already been given, I reject the Applicant’s submission that there is now a “presumption” against remission or early remission. It follows that there is no burden placed on Mr Ma to rebut any presumption. 95.As to the Applicant’s argument based on BOR 6[89], in the absence of any challenge to the constitutionality of s8(3) of the SNSO, I am unable to see how it can be argued that it was wrong for the Commissioner to take into account the NS Test as “the most important consideration” in the discharge of his function pursuant to s6 of the PRSPO. Nor do I see a dichotomy between imprisonment on the hand and reformation and rehabilitation on the other. As aforesaid, one of the purposes of a sentence of imprisonment is the rehabilitation of the defendant. Yeung VP put succinctly in HKSAR v Li Cheng-hong and Ors[90], “[p]rison is a place to punish convicted people and to allow them the opportunity to reform themselves.” Therefore, the possibility of a prisoner having to serve the full of his/her sentence does not of itself deprive his or her of the opportunity to reform and rehabilitate. Rather, it would be the contrary. 96.With respect to Mr Kwan, it is not correct to say that the Commissioner is now vested with the power to “prevent” the Supervision Board from even considering whether an OENS prisoner should be granted an early release on account of his “industry and good conduct”. What has now given to the Commissioner is the task to make an objective assessment which is holistic, evaluative and predictive. The words “decides” and “decision” in s6(3C) in this context does not, in my view, imply any exercise of discretion on the part of the Commissioner, but are references to the conclusion which he reached concerning the failure or otherwise of the NS Test. If, after that assessment the Commissioner finds that the NS Test is not passed in respect of a prisoner, then he has no power or discretion to do anything except to review the prisoner’s case one year later. 97.I bear in mind that what amounts to “inhuman or degrading treatment” or “punishment” depends on all the circumstances of the case: Soering v United Kingdom, ante. However, it can be seriously suggested that people serving prison sentences in Hong Kong are generally subject to any erosion of dignity or inhumane treatment. To be fair to Mr Kwan, his submission does not go that far. Since Mr Ma’s imprisonment term of 5 years was lawfully and properly passed by court and that term has not yet been served, I am unable to see how the non-referral in the present case which may at most result in him staying in prison for the remainder of his sentence could amount to a violation of BOR 6. 98.Last but not least, it is not the case, as Mr Kwan contends, that the NS Test under s 6(3A) of the PRSPO would render prisoners facing long term imprisonment with no prospect of early release. This is because s6(3C) of the PRSPO makes it mandatory for the Commissioner to review his “decision” annually. There is nothing to suggest that the Commissioner would not take this task seriously. As regards (2) 99.To the extent that the Applicant’s submissions are based on BOR 5[91], I note that similar arguments have already been rejected in R (Khan) v Secretary of State for Justice[92]. That case was about the amendments made by the Terrorist Offenders (Restriction of Early Release) Act 2020 by the insertion of a new s247A which restricted early release for prisoners serving fixed-term sentences for certain terrorist offences, known as “terrorist prisoners”. The claimant in that case was one such person affected by the amendments. Instead of being automatically released without reference to the Parole Board at the halfway point of his sentence, his case would be referred at the two-thirds point of his sentence to the Parole Board, which would not direct his release unless satisfied that it was no longer necessary for the protection of the public that he should remain in custody. Garnham J, in rejecting the submission that the new s247A was in breach of Article 5[93] of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), held that it was well established that for the purposes of Article 5 a sentence of imprisonment provided legal authority for the prisoner's detention throughout the term of the sentence, notwithstanding that the prisoner might expect to be released on licence before the end of the sentence. I note that R (Khan) v Secretary of State for Justice, ante, is cited with approval by the UK Supreme Court in Morgan & Ors v Ministry of Justice[94]. 100.As to whether a statutory provision violates the principle of legal certainly, and the “prescribed by law” requirement in particular, the relevant legal principles can be summarised as follows:
101.In Shum Kwok Sher v HKSAR, ante, Sir Anthony Mason NPJ, who gave the judgment of the Court of Final Appeal, cited with approval the remarks of Gonthier J in R v Nova Scotia Pharmaceutical Society[100] that the threshold for a holding of “vagueness” is “relatively high” in that the relevant law should amount to an “unintelligible provision” that “gives insufficient guidance for legal debate and is therefore unconstitutionally vague”. 102.In Lau Cheong v HKSAR[101], the Court of Final Appeal said:
103.Applying the above to the present case, I have the following observations. First and foremost, at the risk of repetition, it needs to be stressed that this case is not about exercise of discretion, as none has been given to the Commissioner under s6(3A) of the PRSPO. What the Commissioner is now required to do under that section is to perform an evaluative and predictive exercise to decide whether and, if so, how the early release of a particular prisoner would bear on the national security risk. That assessment should be holistic and objective, basing on the materials before him including the recommendation of the Assessment Board and the representations, if any, of the prisoner. 104.Secondly, just because the NS Test is expressed in what Mr Kwan describes as a “triple negative” (“must not refer … unless … will not be contrary to …”), that of itself does not render the test vague. As pointed out earlier in this judgment, a similar sentence structure can be found in the proviso to NSL 42. However, the Court of Final Appeal in HKSAR v Lai Chee Ying[102] did not find the proviso to be either vague or unclear which may present a problem for courts to make “predictive and evaluative” assessment in bail applications of defendants charged with OENS. 105.Thirdly, as regards Mr Lui’s reference to the fact that the term “interests of national security” is found in Articles 21 and 22 of the ICCPR[103], I have not lost sight of the principle that what is appropriate as a concept to be included in a constitutional instrument may not be appropriate for inclusion as a statutory test interfering with fundamental rights: Leung Kwok Hung v HKSAR, ante. Mr Lui also relied on the fact that the phrase “contrary to the interests of national security” has been adopted in different statutes in the UK, such as the Telecommunications (Security) Act 2021[104] and the National Security and Investment Act 2021[105]. Mr Kwan’s counter-argument that those English provisions do not engage fundamental rights, with respect, misses the point. The point is that the courts dealing with those provisions do not seem to have any difficulties understanding that phrase and applying it accordingly. One such example is Secretary of State for the Home Department v Rehman, ante, where none of the five Law Lords found the phrase “interests of national security” so vague as to be incapable of giving sufficient guidance for legal debate. Instead, Their Lordships agreed that “the interests of national security” could be threatened not only directly by action against the United Kingdom, its system of government or its people but also indirectly by activities directed against other states. Having considered the submissions of the parties, I agree with Mr Lui’s submissions that the English case authorities referred to by him support the proposition that the terms “national security” and “interests of national security” are capable of being legally certain for employment in legislations. However, a caveat should be added that those case authorities may not have a direct application to the context of the PRSPO scheme and the NS Test in particular. 106.In my view, Kennedy v United Kingdom, ante, is a more helpful case authority for the present purpose. That case concerned the applicant’s convention right to privacy. The European Court of Human Rights was exercised to deal with a challenge to a statutory provision containing the phrase “in the interests of national security”, when the term “national security” had not even been defined in the statute. The applicant complained, among other things, that his communications were being intercepted in “challengeable circumstances”, within the meaning of s65(7) of the Regulation of Investigatory Powers Act 2000 (“RIPA”) and that there was an unlawful interference with his rights under Article 8[106]of the Convention. It was provided in s5 of the RIPA that interception could only take place where the Secretary of State believed that it was necessary “(a) in the interests of national security; (b) for the purposes of preventing or detecting serious crime; or (c) for the purposes of safeguarding the economic well-being of the United Kingdom”. In the absence of a statutory definition of “national security”, the Interception of Communications Commissioner adopted the following working definition:
In rejecting the applicant’s criticism that the terms “national security” was insufficiently clear, the European Court of Human Right observed that the term “national security” was frequently employed in both national and international legislation and constituted one of the legitimate aims to which Article 8(2)[107] itself referred. The court noted that it had previously emphasised that the requirement of “foreseeability” of the law did not go so far as to compel states to enact legal provisions listing in detail all conduct that may prompt a decision to deport an individual on “national security” grounds. The court held that similar considerations apply to the use of the term in the context of secret surveillance. Further, the court relied on the fact that additional clarification of how the term was to be applied in practice in the United Kingdom had been provided by the Commissioner. 107.Unlike Kennedy v United Kingdom, “national security” (國家安全) is now a defined term in Hong Kong by virtue of s4 of the PRSPO:
「4. 國家安全的涵義
108.Given that the Hong Kong Special Administrative Region (“HKSAR”) is an inalienable part of the People’s Republic of China and that the “One Country, Two Systems” as the foundational principle of the HKSAR, it is entirely natural that “national security” should bear the same meaning both in the Mainland and in the HKSAR. 109.In my judgment, the statutory definition of “national security” adopted in Hong Kong is not less precise and certain as the “working definition” in Kennedy v United Kingdom, ante. If the latter was considered as being legally certain, a fortiori, the former should also be so considered, if not more so. 110.Mr Kwan seeks to draw a distinction between “national security” and “the interests of national security” and submits that the latter is undefined and inherently uncertain. He submits that “contrary to” is not the same as “conflict with” or “endanger” or “undermine”, with the result that the phrase “not be contrary to the interests of national security” (不會不利於國家安全) in the NS Test is notably wider than the phrase “not continue to commit acts endangering national security” (不會繼續實施危害國家安全行為的) under NSL 42. He also submits, as the argument goes, that the phrase “not be contrary to the interests of national security” is so nebulous in meaning and unascertainable in ambit that it may catch people who simply refuse to conform with government ideology, but nevertheless has no inclination to endanger national security. Mr Kwan goes even further and submits that the NS Test entails a consideration of factors which is not personal to the prisoner concerned and for that reason is arbitrary and open to abuse. 111.With respect, the above submissions must be rejected. First, the alleged difference between “national security” on the one hand and “the interests of national security” on the other is based on a false premise. The SNSO is enacted in both official languages and its provisions are presumed to have the same meaning in each authentic text: s10B(2) of the Interpretation and General Clauses Ordinance, Cap. 1. The English phrase “be contrary to the interests of national security” in s163 of the SNSO (the amendment to s6(3) of PRSPO) reads “不利於國家安全” in Chinese. It is important to note that there is no Chinese equivalent of the English phrase “interests of national security” in the Chinese authentic text. In my judgment, the proper way to construe both of the authentic texts is to equate:
In other words, “be contrary to the interests of” should be taken together to mean “be adverse to”. Reading in this way, the two authentic texts are harmonious. On the other hand, if one were to treat “interests of national security” as a separate phrase bearing a meaning different to “national security” as contended by Mr Kwan, that would lead to an unnecessary discrepancy between the two authentic texts which is entirely unwarranted. 112.Secondly, the NS Test is about assessment of the national security risk posed by early release of the prisoner concerned. Viewing in this light, whilst the fact that a prisoner holds radical ideologies could be relevant to the assessment of the NS Test, the focus here is primarily not about the prisoner’s ideologies or thinking, but how the prisoner might conduct himself/herself in case of an early release. Therefore, I agree with Mr Lui’s submission that it is inconceivable how considerations can or will be given to early release that are wholly divorced from the prisoner and/or the prisoner’s conduct. In the same token, I reject Mr Kwan’s submission that a prisoner’s “industry and good conduct” is irrelevant to the determination of the NS Test. This is because the prisoner’s good behaviour may shed light on whether he or she has truly and sufficiently rehabilitated and this, in turn, bears on how the prisoner would conduct himself or herself upon early release. 113.Thirdly, as a matter of evidence, there is no basis for Mr Kwan’s submission that a prisoner may be deprived of an early release due to factors not pertaining to the prisoner personally. To the contrary, the evidence before the court is that the factors considered by the Commissioner were all personal to Mr Ma. To recap, they were: (1) Mr Ma’s institutional behavior; (2) his rehabilitation progress; (3) his psychology assessment; and (4) his representations. 114.Fourthly, it is not appropriate to compare the test in NSL 42 and the NS Test. For the sake of argument, even assuming that the test in NSL 42 of “not continue to commit acts endangering national security” (不會繼續實施危害國家安全行為的) is stricter than the NS Test of “not be contrary to the interests of national security” (不會不利於國家安全), it must not be forgotten that the former concerns with people who are presumed to be innocent and the latter concerns prisoners who have already been found guilty of OENS. Even for bail applications, it has always been accepted a general rule that a higher threshold should be applied to bail pending appeal than bail pending trial. In my judgment, the different context of the PRSPO amply justifies the adoption of a different test, bearing in mind the status of the prisoner as a convicted person, the legality of his sentence (unless and until it is overturned on appeal) and the crucial importance of safeguarding national security and protecting the public from serious harm. Conclusion on Ground 1 115.To conclude, the NS Test is neither vague nor arbitrary. To the contrary, the NS Test is sufficiently precise and certain and it is capable of giving sufficient guidance to a prisoner as to how he or she should conduct himself or herself in prison for earning an early release. Therefore, Ground 1 has no merits and is not reasonably arguable. Ground 2: Retrospectivity 116.It is argued on the Applicant’s behalf that insofar as s6(3A) and (3B) of the PRSPO has retrospective effect in extending the presumption against reference to the Supervision Board to sentences of prisoners imposed before the SNSO, it is in breach of HKBOR 12(1)[108]. 117.Without disrespect, this ground can be shortly dealt with. First, as discussed above, there is no “presumption against referral” as asserted. Secondly, there are ample case authorities saying that legislative changes in the execution or enforcement of a penalty affecting existing prisoners do not violate the principle against retrospectivity: Lui Tat Hang Louis v The Post-Release Supervision Board, ante[109]; R (Khan) v Secretary of State for Justice, ante; and Morgan & Ors v Ministry of Justice, ante. It has also been held by the House of Lords that the prohibition on retrospectivity was only to ensure the punishment imposed did not exceed the limits fixed by the statute criminalising the conduct in question: R (Uttley) v Secretary of State for the Home Department[110]. When the case went to Strasbourg, as Uttley v United Kingdom (Admissibility)[111], the European Court of Human Rights declared the application manifestly inadmissible. It held that:
118.As aforesaid, a non-referral pursuant to s6(3A) of the PRSPO is not a penalty but a measure of the execution or enforcement of a penalty which has been passed by court. There is no question of Mr Ma being subject to any additional or heavier penalty by operation of s6(3A) of the PRSPO. Therefore, BOR 12(1) is simply not engaged in the present case. 119.To conclude, this ground has no merits and is not reasonably arguable. Ground 3: Legitimate expectation 120.For the reasons already given, it is not accepted that there had been a specific representation made to Mr Ma that he would be released on 25 March 2024. However, I am prepared to proceed on the basis that, prior to the operation of the SNSO, there was a general practice of CSD which would enable prisoners like Mr Ma to be released early after having served two-third of their sentences. The reason why I disallowed the Applicant’s application to cross-examine Superintendent Lo on “legitimate expectation” was that it would not assist Mr Ma in the present case: see Ng Siu Tung & Ors v The Director of Immigration[112], where the Court of Final Appeal held that in one of the bases for not giving effect to any alleged legitimate expectation was that “there are reasons recognised by law”[113] and that in giving effect to any legitimate expectation, the decision-maker must ensure “to do so falls within the power, statutory or otherwise, of the decision-maker”[114]. It is well-established that the courts would not give effect to a legitimate expectation if it would require a public authority to act contrary to the terms of a statute: R v Secretary of State for Education and Employment ex parte Begbie[115]. See also Cheung Kin Ho & Ors v Registration of Persons Tribunal[116], where Au J (as he then was) summarised the relevant legal principles.[117] 121.Applying the above to the present case, regardless of whether I am correct in reject that there had been a specific representation made to Mr Ma that he would be released on 25 March 2024, after the passing of the SNSO, once the Commissioner decided that Mr Ma had failed in the NS Test, the Commissioner could not in law referred Mr Ma’s case to the Supervision Board. To ask the Commissioner to do otherwise is to invite him to act contrary to the law. 122.This ground has no merits and is not reasonably arguable. Factual disputes on Ground 5 123.I shall now give reasons for my ruling granting leave to the Applicant to cross-examine Superintendent Lo relating to Ground 5 (procedural unfairness). For the sake of convenience, the major factual disputes between the parties as disclosed in their affirmations can be summarised as follows. (1) What happened on 23 March 2024? 124.There is no dispute that Mr Ma was taken to see two clinical psychologists for assessment. The disputes are about what happened before and after that incident. Concerning what happened before he was taken to see the clinical psychologists, according to Mr Ma:
125.On the other hand, according to Superintendent Lo:
(2) When the Notice [B7] was first shown to Mr Ma? Was Mr Ma informed about the recommendation of the Assessment Board? 126.As to what happened in the late afternoon of 23 March 2024, according to Mr Ma:
127.However, according to Superintendent Lo in Lo 1:
128.As to when and how Mr Ma was informed of the contents of the Notice on that occasion, according to Mr Ma:
129.On the other hand, Superintendent Lo said in Lo 1 that during his interview with Mr Ma on 23 March 2024, he read the Notice to Mr Ma and invited the latter to acknowledge the receipt of the Notice by signing it. However, Mr Ma indicated that he did not know whether he would submit the written representation or not and therefore he wanted to sign it by 24 March 2024.[130] By way of supplement, Superintendent Lo said in Lo 2 that he signed first on the first page of the Notice to show that he had informed Mr Ma of the contents of the Notice on that day and before he asked Mr Ma to sign. After Mr Ma had asked for more time, he took the Notice back, intending to give him back on the following day.[131] (3) When was Mr Ma told about the Summary of Considerations and whether he chose not to make further submissions? 130.There is no dispute that the Summary of Considerations was shown to Mr Ma after he had submitted his written representation [A8] in the morning of 25 March 2024. As to when and how he was shown the Summary of Considerations, Mr Ma said:
131.On the other hand, Superintendent Lo said in Lo 1, that he met with Mr Ma on four occasions on 25 March 2024, respectively: (1) at around 9 am, when Mr Ma submitted his written representation[134]; (2) at around 1:35 pm, when he gave a copy of the Summary of Considerations to Mr Ma[135], he asked Mr Ma to signed on it to acknowledge receipt; (3) at around 3 pm, when Mr Ma confirmed in writing [B11] that he had no further representation to make[136]; and (4) at around 4:20 pm, when he verbally informed Mr Ma of the Commissioner’s decision[137]. In Lo 2, Superintendent Lo produced his Penal Entries[138] which he said, supported his account on 25 March 2024. 132.Having considered the affirmation evidence and the submissions of counsel, I disagreed with the submission of Mr Lui that Ground 5 could be disposed of without resolving the aforesaid factual disputes. To the contrary, I was of the view the resolution of the above factual disputes were crucial for Ground 5. I was also of the view that the factual disputes could not properly be dealt with by a consideration of the affirmation evidence on papers only. Therefore, I came to the conclusion that the present case was one of those rare occasions that leave should be granted for cross-examination. 133.Mr Kwan’s application for cross-examination related only to Superintendent Lo. Mr Lui, in view of his stance, made no similar application for cross-examining Mr Ma. In the event, only Superintendent Lo was asked to give live evidence in court. Cross-examination of Superintendent Lo 134.Superintendent Lo adopted his two affirmations, Lo 1 and Lo 2, as his evidence. A major theme of the cross-examination was about the differences between what he said in his two affirmations and his Penal Entry for 23 March 2024. For the sake of convenience, I reproduce that Penal Entry as follows[139]:
135.It was put to Superintendent Lo that in the Penal Entry:
136.As to the above, Superintendent Lo said the Penal Entry was a record of what he did in the interview with Mr Ma and it was not supposed to be a verbatim record of what Mr Ma was told at the time. When he made the Penal Entry, he did not anticipated any legal proceedings. His affirmation evidence was not a direct copy of what he had written in the Penal Entry. It was also based on other records. What he said in Lo 1 was a verbatim record of what he told Mr Ma based on his recollection of the event. As to why he wrote in the Penal Entry that Mr Ma wanted to make a representation, he said that he meant that Mr Ma did not refuse to make a representation at the time and it was Mr Ma’s right whether to make a representation. 137.Superintendent Lo said that on 23 March 2024, he did not have the Summary of Considerations with him. He understood that at the time only the English version was available. He was informed by Superintendent Fung of the factors considered by the Assessment Board in a telephone conversation which took place about 10 minutes before his interview with Mr Ma. Superintendent Fung also told him that the deadline for Mr Ma to submit his written representation was 24 March 2024. Superintendent Lo then made some written notes of these factors and he informed Mr Ma of those factors during the interview. However, Superintendent Lo no longer had the written notes, as they had been destroyed after the interview. Superintendent Lo said that his interview with Mr Ma took place at the Reception Office and it lasted for 5 to 10 minutes. Superintendent Lo denied that Mr Ma refused to sign on the Notice when he was asked to do so. 138.Superintendent Lo said that he arranged Mr Ma to be admitted to the prison hospital after the interview because he observed that Mr Ma was in a low mood. Superintendent Lo did not know whether Mr Ma had taken any documents with him to the prison hospital. Superintendent Lo was asked, given his observation that Mr Ma was in a low mood, why the deadline for submission of the written representation was not put off but remained as 24 March 2024. He replied that had Mr Ma asked for more time, it would have been considered. As it turned out, Mr Ma was in fact given more time. 139.Superintendent Lo denied the allegation that he had not in fact seen Mr Ma on 25 March 2024 and maintained that he had met with Mr Ma on four occasions that day. As to why the Penal Entries recorded just the date but not also the time, Superintendent Lo said that it was his practice not to mark the time. However, there were records kept by the officer posted at the prison gate and those records contained the times of Superintendent Lo’s entrance to the prison to meet Mr Ma. 140.Superintendent Lo said that he received the Chinese version of the Summary of Considerations from Superintendent Fung at about 1:30 pm on 25 March 2024 and he was asked to pass that document to Mr Ma as soon as possible. This was what he did when he met with Mr Ma at around 1:35 pm. As to whether Mr Ma was informed of the factors considered by the Assessment Board when he prepared his written submissions, Superintendent Lo said that he had already informed Mr Ma about them during the interview on 23 March 2024. 141.Superintendent Lo said that he was informed by Superintendent Fung of the Commissioner’s decision at around 4:20 pm on 25 March 2024 but he was not told the reasons for that decision. He immediately informed Mr Ma of the Commissioner’s decision. Superintendent Lo said he had never had the sight of the written reasons of the Commissioner. Assessment of Superintendent Lo’s evidence 142.Having observed and listened to Superintendent Lo giving evidence in court, I find that he is a credible and reliable witness. I accept that the Penal Entries made by him were just a record in gist of what he had done rather than a verbatim report of what Mr Ma was told. As such, the fact that the Penal Entry did not say that he had read the Notice to Mr Ma does not cause me to doubt his evidence. The reference in the Penal Entry referred only to s6(3) rather than s6(3A) of the PRSPO is, in my view, a matter of no moment. In any event, the Notice itself contained a reference to s6(3A)[140]:
143.I bear in mind that the Penal Entries (which consisted of records made by different officers dealing with Mr Ma) was not independent of Superintendent Lo’s evidence. I have also not ignored the fact that the Penal Entry did not tally entirely with what Superintendent Lo said in his affirmations. Nevertheless, I consider it inherently improbable that the former was created specifically for the purpose of this legal proceedings. Had it been otherwise, one would expect either no or fewer discrepancies between the Penal Entry and the affirmations of Superintendent Lo. 144.To the contrary, I find that Superintendent Lo’s evidence as to what he did on 23 March 2024 is by and large consistent with his Penal Entry dated 23 March 2024 as well as the contents of the Notice in the following aspects:
145.Moreover, Superintendent Lo’s evidence that Mr Ma was informed in gist on 23 March 2024 of the factors is also supported by the contents of his written representation in which he addressed the following matters:
146.As the proverb says, “the proof of the pudding is in the eating”. I find that it was not the case that Mr Ma was kept in the dark as to what he was required to address in his written submission. Rather, the written representation supports the Commissioner’s case that Mr Ma had been informed in gist of some of the factors that the Assessment Board had taken into account. 147.Furthermore, based on Superintendent Lo’s evidence and his Penal Entries dated 25 March 2024, I accept his evidence that he met with Mr Ma on four occasions on 25 March 2024. I also accept that Mr Ma had been given a copy of the Summary of Considerations and that he was given time to consider it before he indicated in writing [B11] that he had no further representation to make. 148.I bear in mind that what Mr Ma said in his three affirmations and the fact that the Putative Respondent chose not to cross-examine him. However, having considered all the evidence, both written and oral, I give full weight to the evidence of Superintendent Lo. On the other hand, as I have said, I find Mr Ma’s evidence reliable. In general, I reject the evidence of Mr Ma whenever it conflicts with that of Superintendent Lo. With these factual findings in mind, I now proceed to consider the merits of Ground 5. Ground 5: Procedural unfairness 149.It is submitted on behalf of the Applicant that the Commissioner’s decision dated 25 March 2024 was tainted with procedural unfairness in that the Commissioner:
150.As regards (3), reference was made to the following two pieces of information contained in the Summary of Considerations of the Assessment Board[142]:
151.The Applicant complains about the Commissioner’s refusal to disclose, inter alia, the materials relied upon for the Summary of Considerations. It is submitted that the non-disclosure is in breach of BL 35[143] and renders the process of non-referral to the Supervision Board in breach of BOR 5(4)[144]; and a system determining the continued detention of a prisoner without an effective means of judicial remedy is an unlawful one. 152.BL 35 provides for a number of specific guarantees all falling broadly under the umbrella of “access to court”, including “confidential legal advice”, a “choice of lawyers”, access to “judicial remedies” and the right to institute legal proceedings against the executive: Lau Chun Ming v Deloitte Touche Tohmatsu[145]. In addition, there are a number of implied guarantees, including that it enshrines the right to a fair trial: WML v LCK[146]. Article 35 applies to courts of law. This is defined as the courts entrusted with the exercise of independent judicial power in the HKSAR: The Stock Exchange of Hong Kong Ltd v New World Development Co Ltd[147]. 153.I bear in mind also that there is no universal set of standards which are applicable to all situations. Under the common law rules on procedural fairness, there was no absolute right to have counsel address a tribunal or question witnesses. Tribunals had a discretion whether to permit legal representation. The mode and extent of legal representation which should be permitted at a hearing depended on the needs of fairness in the circumstances and what was proportionate. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: Secretary for Security v Sakthevel Prabakar[148]. Besides, there is no absolute rule that a tribunal must give a party an oral hearing in order to satisfy the “fair-hearing” requirement. The question in a given case is whether the issues can fairly and appropriately be disposed of without a hearing: Liu Pik Han v Hong Kong Federation of Insurers Appeals Tribunal.[149] 154.In the present case, I note that the decision-making process of the Commissioner under s6(3A) of the PRSPO did not even amount to a disciplinary proceedings, nor was it about the determination of Mr Ma’s legal right. For the reasons which I have already given, I do not accept the submission that Mr Ma’s sentence, which was fixed by the court, was increased by the Commissioner’s decision. As aforesaid, Mr Ma has no right to an early release and any substantive legitimate expectation he may have must now be subject to the NS Test. In my judgment, BL 35 is not engaged in the Commissioner’s Decision. Furthermore, the non-referral in the present case did not amount to a “penalty” for the purpose of BOR 5 so that the article is also not engaged. 155.At the end of the day, if procedural unfairness is established, judicial remedy could be provided by way of judicial review. This is what the present application is all about and Mr Ma has the benefit of having not just one but four counsel representing him. 156.Based on my factual findings above, save and except “the available information”, Mr Ma had been informed on 23 March 2024 by Superintendent Lo of the factors considered by the Assessment Board before he submitted his written representation on 25 March 2024. That Mr Ma had been given a reasonable and sufficient opportunity to prepare his representation is shown by the fact that he was able to submit within the time given a representation addressing all those factors which Superintendent Lo had informed him, in spite of his “low mood” and his stay in the prison hospital. 157.Furthermore, the Commissioner’s Decision [B12] shows that the Commissioner had “scrutinized” Mr Ma’s written representation before making his decision and he based his decision partly on Mr Ma’s statement that, “亦明白到現今之香港環境已無法反抗，唯有接受現實”[150]. Regarding Mr Kwan’s complaint that the Commissioner had referred to “something that was taken out of context”, it is trite that the merits of the Commissioner’s decision is not for the court sitting in a judicial review. All I need to say concerning this complaint is that the Commissioner was entitled to interpret Mr Ma’s aforesaid statement in the way he did. 158.It is also well-established that the adequacy of the reasons given depends on context and there is no uniform standard or test which applies to every case. The reasons given can be briefly stated and they need only enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues. The court should not intervene on the basis of an alleged failure to give reasons unless the applicant can satisfy the court that he has genuinely been substantially prejudiced by the alleged failure: see Ng Shek Wai v Hong Kong Institute of Certified Public Accountants[151]. 159.In all the circumstances of the present case, I do not accept that it was necessary for the Commissioner to grant Mr Ma an oral hearing before making his decision. I am also of the view that adequate reasons had been given by the Commissioner’s Decision as revealed in the present proceedings. Based on the reasons given by him, the Commissioner was also entitled to reach the decision as he did. 160.I readily accept that Mr Ma should have been informed of “the available information” prior to the submission of his written representation: A v United Kingdom[152]; and Bank Mellat v Her Majesty’s Treasury (No4)[153]. Based on my factual findings, however, this unsatisfactory aspect had been remedied by the subsequent provision of the Summary of Considerations to Mr Ma coupled with an invitation to him a further representation to response to the matters contained therein including “the available information”. Mr Ma, after being given a reasonable opportunity to consider the Summary of Considerations, chose not to make any further representation. In my judgment, despite the aforesaid initial failure to disclose “the available information”, the decision-making process as a whole was not procedurally unfair and in the event no actual prejudicial was caused to Mr Ma by such failure: Financial Secretary v Felix Wong[154]. In view of this, the subsequent refusal of the Commissioner to provide the Applicant’s solicitors with the materials requested does not bear on the validity of his decision of not referring his case to the Supervision Board. 161.For the above reasons, leave to apply for judicial review is granted to the Applicant for Ground 5. However, after consideration of all the available evidence, the substantive judicial review on this ground is dismissed. Ground 6: Wednesbury unreasonableness 162.Mr Wong on behalf of the Applicant submits that:
163.As regards (a), with respect, in view of the reasons already given in the Commissioner’s Decision [B12] as quoted in the earlier part of this judgment, I am unable to see how that decision could be described as “unreasonable” in the Wednesbury sense. Besides, pursuant to s6(3A) of the PRSPO, it fell on the Commissioner, rather than the Supervision Board, to decide whether the early release of Mr Ma would pass the NS Test. There was no requirement under s6(3A) for the Commissioner to take into account the matters referred to in s5(2) which pertains to the function of the Supervision Board. Furthermore, the NS Test was not a “balancing exercise” but an evaluative and predictive exercise based on the evidence and information before the Commissioner. 164.As regards (b), the nature of the Tameside duty was explained by Hallett LJ in R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice[156] as follows:
See also Ho Loy & Anor v Director of Environmental Protection[157] where Chow J (as he then was) held that Tameside did not establish any general common law duty to consult before a public officer or body could exercise a statutory power which might affect the public generally. His Lordship cited the observation of A Cheung J (as he then was) in Smart Gain Investment Ltd v Town Planning Board & Another[158]:
165.Furthermore, the courts would generally defer to the opinion of the executive on what is required to protect national security, unless it is considered that no reasonable executive could have came to the relevant conclusion in the circumstances of the case: Secretary for Justice v Persons Conducting in Acts Prohibited Etc (Use of Protest Song).[159] 166.Applying the above to the present case, a bare assertion as the one now advanced on Mr Ma’s behalf that the Commissioner had failed to carry out sufficient inquiries is not good enough. There can be no dispute that the question that the Commissioner needed to ask was whether the early release of Mr Ma would pass the NS Test. For that purpose, the Commissioner said he had considered “the recommendation of the Board of Assessment and the supporting materials, the circumstances of [Mr Ma’s] case, all relevant factors and the representations made by [Mr Ma]”[160]. In the event, the Commissioner was not satisfied that the NS Test was passed in Mr Ma’s case. In the circumstances, I cannot see how it can be said no reasonable decision-maker possessed of those materials could suppose that the inquiries the Commissioner had made were sufficient. 167.To conclude, this ground is plainly not reasonably arguable. Ground 7: Irrationality/Disproportionality 168.Mr Wong submits that in the present case it is impossible to accept the Commissioner’s view of proportionality because it has not disclosed any proportionality reasoning. 169.In the recent definitive judgment of the Court of Final Appeal in HKSAR v Ng Ngoi Yee Margaret & Ors, ante[161], it was held that:
170.It is also settled now that in Hong Kong decision challenges may involve five stages, identifying the constitutional right and the impugned measure concerned; ascertaining whether and in what way the impugned measure encroaches upon and so engages that right; determining whether the encroachment is susceptible to, and if so whether it satisfies, the Hysan four-stage proportionality assessment; and deciding whether any remedial order is called for and whether the impugned measure should be declared unconstitutional: HKSAR v Ng Ngoi Yee Margaret & Ors, ante.[162] 171.With respect, this ground fails in limine in that the Applicant is unable to identify any constitutional right of Mr Ma which is said to have been prejudiced by the non-referral. Moreover, as this court has repeatedly emphasised, the NS Test is not a balancing exercise but a holistic evaluative and predictive assessment based on the evidence and information before the Commissioner. Once the Commissioner has made the assessment that the early release of a prisoner fails the NS Test, he has no discretion but to follow s6(3A) of the PRSPO. 172.In the course of submission, Mr Wong supplemented his submission under this head by arguing that the Commissioner should have taken into account Mr Ma’s “legitimate expectation” when he considered the NS Test. With respect, it is difficult to see the rationale of the Applicant’s argument in this connection. In reply to the court’s query as to how Mr Ma’s “legitimate expectation” (if any) for an early release would bear on the assessment of the national security, Mr Wong was unable to provide any elaboration. With respect, I am unable to see how the fact that a prisoner based on the past practice of the CSD has a “legitimate expectation” for early release may either increase or reduce the national security risk that might arise from his or her early release. This ground is plainly devoid of substance. Practical utility 173.It is well-settled that, given the remedies available in a judicial review is discretionary, even if any of the Applicant’s grounds has merits, the court still has the discretion not to order any relief if to make an order would serve no practical purpose or be a pointless exercise of discretion: De Smith’s Principles of Judicial Review (2nd edition), at §15-112. 174.Mr Lui submits that this court should not order any remedies sought as they would have no utility. He relies on the opinion of the Committee for Safeguarding National Security of the HKSAR to the Commissioner exhibited to Fung 1 [B13] dated 3 April 2024 (“the NSC Opinion”) which says:
Mr Lui submits that pursuant to §1 of the Interpretation by the Standing Committee of the National People’s Congress dated 30 December 2022[163] (“the Interpretation”) and s112(3)[164] of the SNSO, the NSC Opinion has “enforceable legal effects”: Lai Chee Ying v Secretary for Justice[165]. Therefore, it is now “a foregone conclusion” that the Applicant did not satisfy the threshold for early release stipulated in s6(3A) of the PRSPO. 175.On the other hand, Mr Kwan seeks to make a distinction between “decision” and “judgment” and submits that it is only the decision of the NSC which is not reviewable. It is further submitted that the NSC Opinion is not a “decision” and in any event the NSC has given no opinion on the systemic constitutionality of the NS Test. 176.With respect, given my judgment on the Applicant’s grounds, it is unnecessary for this court to express any view on the above issues. However, in deference to counsel submissions, I shall say just a few words as follows. 177.In Secretary of State for the Home Department v Rehman, ante, Lord Hoffmann said:
As such, even as a matter of Common Law, full weight should be given to the NSC Opinion as to whether Mr Ma’s early release would not be in the interests of national security and it is a matter to which the court should defer to the Executive. 178.To be fair to Mr Lui, he only seeks to employ the NSC Opinion to deal with Ground 5 (procedural unfairness) and to support the Commissioner’s decision of not making a referral of Mr Ma’s case to the Supervision Board. It is not Mr Lui’s intention to use the opinion of the NSC to justify the constitutionality of the SNSO (and the relevant amendments made to the PR and the PRSPO). As a matter of fact, the NSC has expressed no view on the latter issue, which is properly a matter for the court. 179.Having heard counsel’s submissions, I am inclined to the view that the NSC Opinion falls within the kind of “decision” referred to in the Interpretation and also s112(3) of the SNSO. As such, it is binding on the Commissioner. However, as I have said, it is unnecessary for me to express any definite view on this issue for the purpose of the present case. Conclusion 180.Based on all the above, leave is granted to the parties for the filing of Lo 2 and Ma 3 respectively. Leave is also granted to the Applicant’s application for leave to judicial review only on Ground 5 (procedural unfairness) but not on the other grounds. However, after considered the evidence before the court and counsel submissions, the Applicant’s substantive judicial review is dismissed. Costs 181.I make an order nisi that there be no order as to costs for the two summonses and that there be Legal Aid taxation for the Applicant’s own costs. 182.In view of the fact that this application is the first judicial review relating to the newly enacted SNSO and that important legal issues are raised which are of public interests, I make an order nisi that: (1) there be no order as to costs for the leave application and the substantive judicial review; and (2) the Applicant’s own costs is to be taxed in accordance with the Legal Aid Regulations. If there is no application to vary within 14 days of the handing down of this judgment, these costs orders nisi will be made absolute.
Mr Steven Kwan, Mr Albert NB Wong, Mr Jason Ko (on a pro bono basis) and Ms Yvonne Leung (on a pro bono basis), instructed by S T Cheng & Co. (assigned by the Director of Legal Aid), for the Applicant Mr Mike Lui SC and Mr Martin Ho, instructed by the Department of Justice, for the Putative Respondent [1] Instrument A305. [2] Cap. 234A. [3] Cap. 475. [4] Contrary to Articles 20 and 21 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL 20 and “NSL 21”). [5] DCCC 122/2021. [6] HKSAR v Ma Chun Man [2022] 5 HKLRD 246. [7] The Deputy Head of Tong Fuk Correctional Institution (“Tong Fuk”) where Mr Ma was serving his sentence. [8] There is no dispute that Mr Ma had lost 2 days of his remission due to a discipline matter which I would come to in due course. It suffices to say at this juncture that Mr Ma did not complain about the forfeiture of 2 days. But for the said forfeiture and the operation of the SNSO, assuming a full one-third remission, he would have been released on 23 March 2024 instead of 25 March 2024. [9] [B7/220]. [10] [B9/228]. [11] [B11/240]. [12] The Form 86 was first filed on 21 June 2024 and then amended and refiled with leave on 22 July 2024. [13] Pursuant to r69(1A) of the PR, Cap. 234A. [14] Pursuant to s6(3A) of the PRSPO, Cap. 475. [15] With him, Mr Albert Wong, Mr Jason Ko and Ms Yvonne Leung. [16] The original Ground 4 (ultra vires) concerning the Assessment Board has been abandoned and not pursued. [18] [A2/61]. [19] The 1st affirmation of Mr Ma [A4/67] (“Ma 1”); the 1st affirmation of Superintendent Fung [A6/76] (“Fung 1”); the 1st affirmation of Superintendent Lo [A7/98] (“Lo 1”); and the 2nd affirmation of Mr Ma [A8/111] (“Ma 2”). [20] This, Superintendent Lo said, was because the Head was away from office. [21] Dated and filed on 7 October 2024 [C1/277]. [22] [C3/284]. [23] [C6/302] which, I note, were not referred to in Lo 1. [24] Dated and filed on 8 October 2024 [C2/295]. [25] [C5/295]. [26] Letter from the court dated 9 October 2024. [27] Letter from the Department of Justice for the Putative Respondent dated 10 October 2024. [28] [2015] 4 HKC 297 at §11 (per Au J, as he then was). [29] At §§36-40. [30] Together with him, Mr Martin Ho. [31] By the operation of s67A of the Criminal Procedure Ordinance (“CPO”), the time the prisoner spent on remand in custody prior to the passing of sentence would be taken into account for the computation of the prisoner’s sentence of imprisonment. [32] [2022] 1 HKLRD 219, at §§27-28. [33] [2010] 1 HKC 297, at §35. [34] s3(1)(c), the PRSPO. [35] s3(1)(d), the PRSPO. [36] s3(1)(e), the PRSPO. [37] At §28. [38] Ibid, at §28. [39] [2010] 4 HKLRD 409. [40] Chairman of the Assessment Board and acting then as Senior Superintendent. [41] [A7/101/§14]. [42] Ante, at §91. [43] [A1/12/§16]. [44] At §1-18. [45] At §3-17. [46] At p.79. [47] At p.83. [48] [1988] 2 HKLRD 214. [49] (2004) 7 HKCFAR 600, at §1. [50] (2020) 23 HKCFAR 169, §15. [51] (2021) 24 HKCFAR 193, at §46. [52] (2018) 21 HKCFAR 421, at §§84-85. [53] [2000] 3 HKC 482, at 493. [55] [2021] 5 HKLRD 724, at §67 and footnote 75. [56] [2023] 2 HKLRD 799. [57] SBG/3/101/2024 [B3/181/§69]. [58] Bills Committee on Safeguarding National Security Bill of the Legislative Council, Verbatim record of meeting [B4/188/012715]. [59] LC Paper No. CB(2)341/2024 [B5/208], at §§266-267. [60] See s152 of SNSO. [61] See s163 of SNSO. [62] See s164 of SNSO. [63] Ma 2 [A8/113/§9]; Ma 3 [C5/296/§6]. [64] Lo 1 [A7/104/§22]. [65] I note also that although the Applicant applied to cross-examine Superintendent Fung, there was no similar application regarding Superintendent Fung. [66] Fung 1 [A6/90-91]. [67] Pursuant to r68B of the PR. [68] [B9/228-230]. [69] [B12/243]. [70] (2021) 24 HKCFAR 33, at §§67-68. [71] [A6/88/§40]. [72] [2003] 1 AC 153. [73] Ibid, at §63. [74] Ibid, at §64. [75] Ibid, at §56. [76] (2014) 58 EHRR 37, at §83. [77] (2023) 76 EHRR 38, at §47. [78] (1989) 11 EHRR 439, at §89. [79] (2011) 49 EHRR 35, at §152. [80] “No punishment without law”, which, for the present purpose, is equivalent to BOR 12(1). [81] Equality before courts and right to fair and public hearing
[82] Rights of persons charged with or convicted of criminal offence
[83] Consisting of Stock VP as he then was, Kwan JA (as she then was) and Andrew Cheung J (as he then was). [84] See §2 & §6 (per Stock VP) and §116 (per Andrew Cheung J) of that judgment. [85] [2011] 1 HKC 34. [86] CACC 509/1986 (unreported) (dated 27.2.1987). That case stood for the proposition that the object of any sentence was first of all to deter the offender and also other members of the public likely to commit that sort of offence. It was however, pointed out in Secretary for Justice v Ma Kwai Chun [2008] 5 HKC 1 that the judgment was not one dedicated to an analysis of all considerations relevant to sentencing. [87] [2011] 5 HKLRD 422, at §23(1), per Stock VP (as he then was). [88] (2016) 19 HKCFAR 372. [89] Article 6 Rights of persons deprived of their liberty
[90] [2011] HKCU 2337. [91] Liberty and security of person
[92] [2020] 1 WLR 3932, at §§106-108, 121. [93] Right to liberty and security. [94] [2024] AC 130. [95] (2005) 8 HKCFAR 229, at §27. [96] (2002) 5 HKCFAR 381, per Sir Anthony Mason NPJ (at §63), citing the majority in Sunday Times v United Kingdom (No 1), (1979) 2 EHRR 245. [97] (1994) 18 EHRR CD 72, at CD 75. [98] (2011) 52 EHRR 4, at §159. [99] Ibid, at §27. [100] (1992) 74 CCC (3d) 289. [101] (2002) 5 HKCFAR 415, at §112. [102] (2021) 24 HKCFAR 33. [103] See also BOR 17 and BOR 18. [104] See ss.15, 17, 21, 22 & 23. [105] See ss.28(5) & 29(3). [106] Right to respect for private and family life. [107] “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” [108] No retrospective criminal offences or penalties
[109] At §§24-28. [110] [2004] 1 WLR 2278. [111] (36946/03) [2009] Prison L.R. 1 (dated 29 November 2005). [112] (2002) 5 HKCFAR 1. [113] Ibid, at §95. [114] Ibid, at §94. [115] [2000] 1 WLR 1115, at 1125D-E (per Peter Gibson LJ). [116] [2014] 3 HKLRD 526. [117] Ibid, at §22. [118] [A1/15/§21]. [119] [A8/114/§14]. [120] [C5/297/§11]. [121] Lo 1 [A7/108/§31]. [122] Lo 2 [C3/287/§13]. [123] [A8/115/§15]. [124] [C5/297/§§9-10]. [125] [A7/106/§28]. [126] [A1/16/§24]. [127] [A8/115/§19]. [128] [A8/116/§20]. [129] [C5/298/§13]. [130] [A7/107/§28(b) & §29]. [131] [C3/288/§14]. [132] [A1/16/§26]. [133] [A8/119/§31]. [134] [A7/108/§34]. [135] [A7/108/§35]. [136] [A7/109/§36]. [137] [A7/109/§37]. [138] [C6]. [139] [C6/302]. [140] [B7/220]. [141] The Notice was on a pre-printed form and the words underscored were filled in by hand. [142] [B9/236]. [143] Article 35
[144] Article 5 Liberty and security of person
[145] (2016) 19 HKCFAR 448. [146] [2015] HKEC 338, at §27 (per Cheung JA). [147] (2006) 9 HKCFAR 234. [148] (2004) 7 HKCFAR 187, at §§43-45. [149] [2005] 3 HKC 242 at §§33-38. [150] The certified translation reads: “I acknowledge that there is no way I can resist in Hong Kong’s current state, and there is no choice but to accept reality.” [151] [2019] HKCFI 2439, at §41. [152] (2009) 49 EHRR 29. [153] [2016] 1 WLR 1187, at §§ 29-39. [154] (2003) 6 HKCFAR 476, at §14 (per Bokhary J). [155] [1977] AC 1014, at 1065. [156] [2014] EWHC 1662, at §139. [157] HCAL 21 & 22/2015 (unreported) (dated 22.12.2016), at §§51 & 53. [158] HCAL 12/2006 & 12/2007 (unreported) (dated 6.11.2007), at §87. [159] [2024] 3 HKLRD 32, at §§52-63. [160] [B12/243]. [161] At §50. [162] Ibid, at §127. [163] A304:
[164] s112(3): “If the law of the HKSAR confers any function on a person, any person, in making any decision in the performance of the function, must respect, and implement in accordance with the law, the judgements and decisions of the National Security Committee.” [165] [2023] 3 HKLRD 275, at §§7, 45-58. | |||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCAL 979/2024