Yau Kwong Man v. Secretary for Security
Read the full judgment text of HCAL 1595/2001 on BabelCite. This High Court CFI judgment was delivered on 9 September 2002.
1. The applicants in this matter are serving long-term, indeterminate sentences of imprisonment. By 'indeterminate' is meant sentences which contain no assurance of release on a fixed date. They are detained at what used to be called Her Majesty's pleasure but, with the resumption of sovereignty in 1997, is now called at Executive discretion.
Cited by 3 cases · Cites 5 cases
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HCAL001595/2001 HCAL 1595/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST ____________
____________ HCAL 1596/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST ____________
____________ Coram: Hon Hartmann J in Court Dates of Hearing: 3-7 June and 12 July 2002 Date of Handing Down Judgment: 9 September 2002 _______________ J U D G M E N T _______________ Introduction 1.The applicants in this matter are serving long-term, indeterminate sentences of imprisonment. By 'indeterminate' is meant sentences which contain no assurance of release on a fixed date. They are detained at what used to be called Her Majesty's pleasure but, with the resumption of sovereignty in 1997, is now called at Executive discretion. 2.Both applicants are imprisoned for crimes of murder. Yau was convicted of that offence in October 1987, Lai in November 1989. At the time of the commission of their offences both were 16 years of age. 3.When the applicants were sentenced, the mandatory sentence for murder by an adult was a sentence of death. However, because of their youth, the applicants were sentenced in accordance with s. 70 of the Criminal Procedure Ordinance, Cap 221 which (at that time) directed that -
4.Prior to the change of sovereignty in 1997, it was the Governor who determined when the indeterminate sentence of detention at Her Majesty's pleasure should be commuted to a fixed term. His power to commute or remit such sentences came from Art. XV of the Letters Patent, that Article effectively delegating to the Governor the exercise of the royal prerogative of mercy. 5.In the exercise of his power, the Governor was advised by a non-statutory board of review. Originally, the board of review had been chaired by the Attorney General but in 1988 the chairmanship was transferred to a judge of the Supreme Court. 6.In 1993, s. 70 of Criminal Procedure Ordinance was abolished. In the result sentences of what are today called detention at Executive discretion were no longer imposed. In their place, in respect of all persons convicted of murder, whatever their age, a mandatory sentence of life imprisonment was imposed. The mandatory sentence of life imprisonment was to endure until 1997 when what I will refer to in this judgment as a 'new statutory regime' was put in place. Today, prisoners who remain detained at Executive discretion constitute a limited class of prisoners. I am told they are some 15 in number. 7.In 1997, as I have said, a new statutory regime came into law. This new regime governed how persons convicted of murder committed under the age of 18 were to be sentenced and also governed the manner in which the continued detention of persons serving long-term prison sentences were to be reviewed. 8.The continued detention of the applicants has been directly affected by the terms of the new statutory regime. In particular, in terms of s. 67C of the Criminal Procedure Ordinance, Cap. 221 ('the CP Ordinance') it has been determined by the Chief Executive that each of them must serve what is called a 'minimum term', that term primarily addressing the retributive and deterrent elements of their separate offences. In December 1997, in accordance with the procedure laid down in s. 67C, the Chief Executive specified that Yau's minimum term should be 15 years imprisonment while Lai's should be 20 years. In terms of s. 12(2) of the Long-term Prison Sentences Review Ordinance, Cap. 524 ('the Sentences Review Ordinance') the board responsible for monitoring the continued detention of the applicants is unable to order their release, conditional or otherwise, until the minimum terms have been served. 9.It is to be emphasized that the applicants' challenges are not addressed to decisions already made concerning them as individuals under the new statutory regime. Their challenge is to the constitutional validity of the legislation itself. The applicants' specific challenges 10.The applicants seek the following declarations in respect of s. 67C of the CP Ordinance :
11.The applicants seek the following single declaration in respect of the Sentences Review Ordinance; namely, that s. 12(2) of that Ordinance is inconsistent with Art. is 9(4) of the ICCPR as applied to Hong Kong through Art. 39 of the Basic Law and contravenes Art. 8 of the Basic Law. 12.I will look first to the challenges made to s. 67C of the CP Ordinance and thereafter to the challenges made to s. 12(2) of the Sentences Review Ordinance. First, however, because they are fundamental to the issues raised in this judgment, something must be said of the lawfulness generally of indeterminate sentences imposed on young offenders; that is, persons under the age of 18 at the time of the commission of their offence, and the calculation within those sentences of specific periods of time that must be served to reflect the imperatives of retribution and deterrence. Young offenders : the lawfulness of indeterminate sentences 13.It was never disputed during the hearing that indeterminate sentences imposed on young offenders are lawful. Nor was it disputed that the determination of a minimum term within such sentences to reflect the punitive element of crimes committed are lawful. Clearly, in my judgment, they are lawful. 14.In 1991, the Government of the United Kingdom ratified the United Nations Convention on the Rights of the Child and in 1994 extended the Convention to Hong Kong. In June 1997, the Government of the People's Republic of China informed the United Nations Secretary-General that the Convention would continue to be applied to Hong Kong after the change of sovereignty. Art. 37(a) of the Convention states :
15.As will be illustrated later in this judgment, a sentence of detention at Executive discretion, while it may, in exceptional circumstances, amount to a sentence of life imprisonment, is not a sentence of life without the possibility of release. Indeed, as the term implies, it is a discretionary sentence, one which in principle is more lenient than a sentence of life imprisonment imposed upon an adult. 16.While the Convention prohibits the imposition of cruel, inhuman or degrading punishment on children (that is, persons under the age of 18), punishment itself is accepted as a regrettable essential in the good governance of communities. Art. 37(b) reads :
17.It follows that the determination within an indeterminate sentence of a period of time that must be served to reflect the imperatives of retribution and deterrence is lawful. In V v United Kingdom (1999) 30 EHRR 121, a judgment of the European Court of Human Rights much relied upon by Mr Griffiths SC, for the applicants, the Court commented as follows in respect of the calculation of a 'tariff period' to reflect the punitive element of an indeterminate sentence (para. 98, page 183) :
S. 67C of the CP Ordinance : its place in the statutory regime 18.In 1997, s. 2 of the Offences Against the Person Ordinance Cap. 212, was amended to read :
19.If, however, the court imposes a sentence of life - an indeterminate sentence - it is obliged to specify a 'minimum term', that is, a fixed period which is to be served in order to meet what I have earlier described as the imperatives of retribution and deterrence. This obligation is imposed on the court by s. 67B(1) of the Sentences Review Ordinance which states :
20.Just as the sentence of life imprisonment may be appealed so may the court's assessment of the minimum term. The process of determining a sentence in terms of s. 2 of the Offences Against the Person Ordinance and assessing a minimum term under s. 67B(1) of the Sentences Review Ordinance is an entirely judicial process. 21.The introduction in 1997 of this new form of sentencing, in which the specification of a minimum term was integral to the process, raised the question of how those already serving sentences were to be treated. While, in determining an appropriate length of sentence, the earlier review process would in the ordinary course have taken into account the imperatives of retribution and deterrence, there had been no formal assessment of a minimum term to reflect those imperatives. For prisoners already sentenced it was felt that this absence created uncertainty. As Lord Woolf M.R. said of the practice in the United Kingdom of the Home Secretary fixing a 'tariff period' to reflect the penal element of indeterminate sentences imposed on young offenders :
22.In the result, it was determined that existing prisoners too should be informed of what was considered in each of their cases to be a suitable minimum term that must be served by them. In March 1997, when moving the second reading of the Sentences Review bill, the Secretary of Security said :
23.Existing prisoners, of course, were already serving sentences lawfully imposed. It was therefore determined that the assessment of appropriate minimum terms would be an administrative process. As the Secretary for Security said :
24.In furtherance of this policy, s. 67C of the CP Ordinance was enacted on 26 June 1997 by virtue of schedule 2 of the Sentences Review Ordinance. It came into force on 30 June 1997. It bears the heading - 'Minimum terms to be determined in respect of certain existing prisoners' - and, in terms of subsection (1), says that it applies to prisoners who are serving discretionary life sentences or who are detained at Executive discretion. 25.The applicants, as I have said, are detained at Executive discretion. This is by virtue of s. 4 of the Sentences Review Ordinance (which also came into force on 30 June 1997) which directs that all persons detained at Her Majesty's pleasure shall, from 1 July 1997, be detained at 'the discretion of the Chief Executive'. 26.That detention at the discretion of the Chief Executive, is an indeterminate sentence is also recognised by s. 4 of the Sentences Review Ordinance which reads :
27.S. 67C - which governs the applicants - reads :
28.Although, in terms of s. 67C, the Chief Justice does not merely advise the Chief Executive, he makes recommendations to him, the process mandated by the section is clearly, in my view, an administrative one. As such, it is subject to the review of this Court. See R v Secretary of State, ex parte Furber [1998] 1 All ER (at 27) where Simon Brown LJ, in considering a similar process in which the Lord Chief Justice made recommendations to the Home Secretary in respect of 'tariff periods', observed :
29.It should be noted that s. 67D of the CP Ordinance has made the exact same provisions as s. 67C in respect of prisoners who from 1993 until 1997 had been subject to the mandatory sentence of life imprisonment, even if under 18 years of age, when they committed murder. Subsection (1) of s. 67D reads :
30.The phrase 'minimum term' is therefore common to ss 67B, C and D. It follows, I believe, that the legislature intended the phrase to have the same meaning in all three sections. The United Kingdom usage of the phrase 'tariff period' has not been adopted, a point underscored by Mr Blanchflower SC for the respondent. 31.As to the meaning of the phrase, 'minimum term', it can be found in HKSAR v Hui Chi Wai and Others CACC 78/1999 (unreported) in which the Court of Appeal looked to its meaning in s. 67B; that is, in relation to a judge who, having determined that a life sentence should be imposed, is obliged, as part of his sentencing exercise, to assess a minimum term. Stock JA, giving the judgment of the court, said that s. 67B -
32.Stock JA noted that, in exercising its powers under s. 67B, a court would not be in a position to address all the issues which a board of review constituted in terms of the Sentences Review Ordinance would at a later stage be required to take into account (rehabilitation, the likelihood of successful re-integration into the community and the like). That being so -
33.As I have said earlier, in December 1997, in accordance with the administrative procedures laid down in s. 67C, the Chief Justice recommended to the Chief Executive the minimum terms that should, in his opinion, be served by the applicants. The recommendations of the Chief Justice were accepted by the Chief Executive. Indeed, all recommendations made by the Chief Justice under ss 67C and 67D were accepted by the Chief Executive. 34.As administrative decisions, the determinations of the Chief Executive, once made, were not subject to appeal although they were, as I have said, subject to judicial review. See subsection(6) of s 67C and D which read :
The challenge to s. 67C 35.The challenge to the constitutional validity of s. 67C may be summed up in the following set of propositions :
36.In response to the contention that s. 67C is inconsistent with Art. 80 of the Basic Law, Mr Blanchflower said that the legislature has given no power to the Chief Executive under that section which he does not already possess under the Basic Law; namely, the power under Art. 48(12) "to pardon persons convicted of criminal offences or commute their penalties." Just as, prior to 1 July 1997, Governors of Hong Kong, exercising the delegated royal prerogative of mercy, had reviewed the sentences of prisoners held at Her Majesty's pleasure to determine if and when those sentences should be substituted for a sentence of fixed duration so the Chief Executive, exercising the powers given to him under Art. 48(12), carries out the same function. 37.Mr Blanchflower submitted that the manifest purpose of the administrative process created under s. 67C was to enable the Chief Executive, in respect of a sentence already lawfully imposed, to determine in a fair and transparent fashion one of the fundamental matters that he would have to decide in the exercise of his power to commute or remit sentences; namely, what accord in each case should be given to the imperatives of retribution and deterrence. That being so, the determinations made in respect of the applicants under s. 67C were not made to determine the severity of a sentence, they were made as part of an exercise - the first part only - to determine if and when a lawfully imposed sentence may be commuted or remitted. 38.It has not been disputed that the Basic Law is founded on what is commonly called the Westminster model. As such, the powers of the legislature, the executive and the judiciary are separate. In terms of Art. 80, judicial power is vested in those appointed to hold judicial office. That being so, what the legislature cannot do, consistent with the separation of powers, is to place judicial power in the hands of the executive. The principle was clearly stated by Lord Diplock, giving the opinion of the Privy Council, in Hinds v R [1997] AC 198 (at 225) :
39.Looked at in general terms, the question of whether an exercise of judgment is an exercise of judicial or administrative power is often difficult to decide. As Kitto J said in R v Trade Practices Tribunal and Others, ex parte Tasmanian Breweries Pty. Ltd. [1971] 123 CLR 361 (at 373), it has not been found possible to frame an exhaustive definition of judicial power. There does exist a borderland in which judicial and administrative functions overlap. 40.Under s. 67C, the Chief Executive must perform his powers in a judicial manner; that is, with judicial fairness and detachment. But that is true of many administrative powers. 41.In the present case, however, it is not necessary, in my opinion, to look to the question of distinguishing judicial from administrative power in a general sense. Lord Diplock in Hinds (supra) was concerned with the application of the constitutional principle of separation of powers in the field of punishment for criminal offences. The same applies in the matter before me. I am concerned therefore, at root, with a power exercised by a sovereign body in a criminal matter concerning the liberty of the subject. 42.I believe therefore that the essential question may be expressed in the following manner. Is the determination by the Chief Executive of a minimum term under s. 67C the determination of a punishment, more particularly as to its severity, or is it no more than an integral part of the exercise of his executive power under Art. 48(12) of the Basic Law to commute a punishment already lawfully determined and imposed by the courts? If it is the former, s. 67C must be inconsistent with Art. 80 of the Basic Law. If it is the latter, the legislature has not placed the exercise of judicial power in the hands of the executive and s. 67C must be declared constitutionally valid. 43.In the course of his submissions, citing Lord Steyn in R v Secretary of State for the Home Department, ex parte Daly [2001] 2 AC 532 (at 548), Mr Blanchflower emphasized that 'in law context is everything'. It is therefore essential to consider the substance of s. 67C not merely its form and to do so in context. On this basis, Mr Blanchflowers's submissions may be stated in the following terms :
44.Mr Blanchflower sought support for many of his submissions in the 1995 judgment of the Privy Council in Huntley v Attorney General for Jamaica [1995] 2 AC 1. That judgment too concerned an amendment to existing law in respect of sentencing for murder. 45.The factual basis of Huntley is as follows. In Jamaica, prior to the commencement of the Offences Against the Person (Amendment) Act of 1992, sentence of death was mandatory for all persons convicted of murder. The Act, however, established two categories of murder : capital and non-capital. In addition, the sentence of persons convicted before the commencement of the Act were to be reviewed by a judge of the Court of Appeal so that those sentences could be classified as capital or non-capital. The review was administrative; no hearing was given. If, however, a prisoner was dissatisfied, he could seek a further review by three judges of the Court of Appeal. The appellant, Huntley, sought a declaration that the process of review contravened s. 20(6) of the constitution which, in respect of the determination of a criminal charge, afforded protections of the same nature as Art. 10 of the BOR. In giving the judgment of the court, Lord Woolf said (at 11) :
He continued (at 12 and onwards)
46.In my view, the reasoning in Huntley is directly relevant to the issue of whether s. 67C infringes Art. 10 of the BOR and, in that regard, I adopt it. I find it difficult, even on a generous and purposive interpretation, to find that the review procedure created in s. 67C in respect of persons whose trials and appeals are fully concluded and who are now serving their sentences falls with the ambit of Art. 10. As Mr Blanchflower emphasised, s. 67C requires no determination of a criminal charge. That has already been determined. A conviction has been recorded and a lawful sentence imposed. S. 67C applies only to those persons who have exhausted the criminal process and are now serving their sentences. 47.Looking to the BOR as a whole, the same phrase - 'determination of any criminal charge' - is found in Art. 11(2) which commences :
48.What is described in Art. 10 and 11 of the BOR, looking to universal concepts of justice, is, in my view, plainly a process for determining a criminal accusation brought against an individual. What is guaranteed is the integrity of the investigation and trial process and, if relevant, the process of appeal. S. 67C looks to a review process that, in my view, is entirely different and is, to employ the words of Lord Woolf in Huntley, 'not comparable to charging a person with a criminal offence'. 49.Manfred Nowak, in his work U. N. Convention on Civil and Political Rights, CCPR Commentary, gives a generous yet rationally restricted meaning to the process of determining a criminal charge. He writes (at 244) :
50.Having regard to the meaning and intent of Art. 10, I am therefore satisfied that on its true construction it has no reference to the review procedure created in s. 67C. 51.In Huntley, however, the review process was at all times placed in the hands of the judiciary of Jamaica. In my view, the powers exercised, no matter what their form, were judicial powers. That still leaves the question, therefore, of the true nature of the powers given to the Chief Executive in terms of s. 67C. Are they judicial or administrative powers? 52.In answer, it is first necessary, I believe, to look to the true nature of the sentence which is the subject of this judgment, that of detention at Executive discretion. The nature of the sentence, as far as I am aware, has not been considered by our courts. But, as detention at Executive discretion is a direct and unaltered successor to detention at Her Majesty's pleasure, English authorities may be referred to for guidance. In England, there has been no unanimous agreement as to definition. When the matter came before the House of Lords in R v Secretary of State for the Home Department, ex parte Venables (supra), the decision was a majority decision as it had been in the Court of Appeal below. The majority, however, were agreed that detention at Her Majesty's pleasure was not the same as a sentence of life imprisonment. It was, in principle, a more lenient sentence, indeed a wholly discretionary sentence. In his speech (at 532) Lord Hope observed :
53.Lord Browne-Wilkinson (at 498) made it clear that, in his opinion, detention at Her Majesty's pleasure was a very different sentence from that of life imprisonment, fundamentally so as to the manner in which, in each case, its severity was determined :
54.In Venables, the House of Lords was, in addition to defining the nature of the sentence of detention at Her Majesty's pleasure, required to consider the nature of the administrative exercise carried out by the Secretary of State in assessing a 'tariff period' in respect of such a sentence. The 'tariff period' had arisen out of statements of policy made by a succession of Home Secretaries, the policy being described by Dame Angela Rumbold in Parliament on 16 July 1991 (Hansard (HC Debates), cols 311-312) in the following terms :
55.The 'tariff period' is therefore the appropriate period necessary to reflect the punitive element of a sentence and constitutes in the great majority of cases the full sentence to be served. 56.In respect of the determination of a tariff period, Lord Hope said (at 537) :
57.Lord Steyn (at 526) commented that :
58.Lord Diplock in Hinds (supra), in considering a mandatory sentence of 'detention at hard labour during the Governor-General's pleasure' prescribed by the Gun Court Act of Jamaica, a sentence determinable only by the Governor-General on the advice of a review board, found that any such determination would be an unconstitutional exercise of judicial power. He spoke of looking to the substance of the legislation not the form and said :
59.As to the contention that the determination of sentence was an exercise of the royal prerogative of mercy, a power still retained in the constitution of Jamaica, Lord Diplock said that this power was confined to the remission of a punishment already lawfully imposed by a court. He continued :
60.For completeness, it should be said that in V v United Kingdom (supra), the European Court of Human Rights (paras 110 and 111, page 186) found that, in respect of young offenders detained at Her Majesty's pleasure, the fixing of a tariff period amounted to a sentencing exercise. 61.Further, in Stafford v United Kingdom ECHR, 28 May 2002, the European Court spoke of the practice by the Home Secretary in the United Kingdom to fix tariffs for different classes of murder sentences and said (para 79) :
62.The European Court has rejected arguments that the fixing of a tariff period is merely part of the administration of a sentence already imposed by the courts. 63.I accept, of course, that decisions of the European Court of Human Rights in relation to the European Convention are not binding on this Court. Later in this judgment, I will refer to this matter in greater depth. I accept also that a 'tariff period' in the United Kingdom is not to be equated in all respects to a 'minimum term' under Hong Kong domestic law. There are fundamental differences. But, in my view, the decisions of the European Court in this instance support decisions of the English courts (for example, in Hinds, a Privy Council judgment) and thereby support what I will call the universality of the view that the fixing of a period of time that must be served by an offender to extinguish the retributive and deterrent elements of his sentence is an exercise in determining punishment for that individual offender. 64.Mr Blanchflower sought to distinguish the fixing of a tariff period in the United Kingdom from the setting of a minimum term under ss 67B, C and D of the CP Ordinance. In the United Kingdom, he said, the fixing of the tariff period had been elevated for all practical purposes to the determination of the full sentence. This is because upon completion of the tariff term, a prisoner is entitled to be released subject only to the single issue of risk. As such, it may be said that it does constitute the determination of sentence. In Hong Kong, however, the assessment of a minimum term is just one in a broad range of matters that must be taken into account in determining when a prisoner is ready to be integrated back into society. 65.That, of course, is correct. As I have said, there are fundamental differences between a 'tariff period', as that term is employed in the United Kingdom, and a 'minimum term', as that term is used in our legislation. Nevertheless, while the assessment of a minimum term may not dictate absolutely the final length of sentence to be served, it does (critically) primarily address and primarily determine that period that must be served to reflect the imperatives of retribution and deterrence. It would, in my view, be artificial to suggest that it does not thereby, to a material degree, dictate the severity of the sentence. In the present case, for example, the applicant, Lau, has had his minimum term assessed at 15 years while Lai has had his assessed at 20 years. Those separate terms, if not constituting the full sentences to be served, may well constitute by far the greatest bulk of the sentences finally to be served by each of the two applicants. 66.It is important also to remember that the Chief Executive, in determining a minimum term, must look to individual circumstances; that is, to the circumstances of the offence, the moral culpability of the prisoner in the commission of the offence and his current personal circumstances. These are all matters inherent in the judicial act of sentencing. As was said by the Supreme Court of Ireland in Deaton v Attorney-General and the Revenue Commissioners [1963] IR 170 (182-183) cited with approval in Hinds (supra) :
67.In the circumstances, I must reject the submission that s. 67C bestows on the Chief Executive an administrative power only, even if it is a power that must be exercised judicially. I am satisfied that s. 67C, whatever its form, in substance gives to the Chief Executive the power to exercise what is an inherently judicial power. 68.In Ng Ka Ling and Others v Director of Immigration (1999) 2 HKCFAR 4 Li CJ spoke of the constitutional jurisdiction of the courts of Hong Kong in the following terms :
69.This Court, of course, has a discretion to refuse to grant a declaration even if an inconsistency is identified. Order 53, r. 1(2) of the Rules of the High Court provides that a declaration may only be granted if the court considers it 'just and convenient ot do so'. Mr Blanchflower argued that the granting of a declaration would serve no useful purpose in the present case. To employ his words, the Applicants have not shown what the result would be if the challenged section is declared unconstitutional. Assuming remedial legislation is enacted which requires the Chief Justice to make determinations of minimum terms, it cannot be said that the minimum terms will be different from the existing terms he recommended and which were accepted and determined by the Chief Executive. 70.But the Court of Final Appeal in Ng Ka Ling (supra) spoke of an 'obligation' not a 'discretion' to grant a declaration if an inconsistency is identified. This Court is performing a constitutional role under the Basic Law of acting as a constitutional check on the executive and legislative branches of government. In my view, it is a role of such fundamental importance that, if it is avoided by too ready a recourse to discretion in individual cases, it could well over a period of time undermine the integrity of the Basic Law itself. 71.Accordingly, on the basis of my findings, I hold that s. 67C is inconsistent with Art. 80 of the Basic Law. 72.Should it be suggested that such a finding cannot exclude the collateral finding that s. 67C must therefore offend Art. 10 of the BOR, I should state that, in my view, the constitutional reserve of the exercise of judicial power by the judiciary is not restricted, in criminal matters, to the determination of a charge against an individual as that phrase is understood in Art. 10. That may, in practical terms, make up the great bulk of the exercise of judicial power but, as illustrated in Huntley, in the complexity of modern legal regimes, there may be other areas in which the exercise of judicial power is required. I note, for example, that after the judgment of the European Court in V v United Kingdom, for existing prisoners detained at Her Majesty's pleasure, a review similar to the one conducted in Huntley was put in place in terms of a practice direction - [2000] 4 All ER 831 - in which Lord Woolf CJ said :
I consider the Chief Justice's decision in terms of that practice direction to be very much the exercise of judicial power. S. 12(2) of theSentences Review Ordinance : 73.The Sentences Review Ordinance establishes a Long-term Prison Sentences Review Board ('the Board') to review on a regular basis the sentences of persons serving long-term sentences, including detention at Executive discretion. 74.As for the composition of the Board, two members must be serving or former judges of the High Court who hold the positions of President and Deputy President. Of the other members (who shall be no more than 11 and no fewer than 8), they must include a psychiatrist, a psychologist, a barrister or solicitor, an educationalist, a business person and an experienced social worker. At least one of the members must, in addition, have expertise in the rehabilitation of offenders. The composition of the Board therefore ensures a broad range of relevant expertise. 75.The members may only be removed from office after an inquiry has determined that they have been guilty of misconduct, incompetence or of being absent without leave, or if the inquiry finds them to be physically or mentally incapacitated. The Board is independent of Government : see s. 5(3). It is not, therefore, part of the executive. 76.In conducting its review of sentences the Board must, (in terms of s. 8) to have primary regard to four principles -
77.In addition for the purposes of reviewing a prisoner's sentence, the Board may take into account a broad range of matters listed in the Long-term Prison Sentences Review Regulations and 'any other matters the Board considers relevant.' In Schedule 1 to the Regulations the following matters are included :
78.While therefore in the United Kingdom - prior to any recent changes - a young offender sentenced to an indeterminate term of imprisonment would have the legitimate expectation that, provided he presented no risk to society, he would be released upon the expiration of his 'tariff period', the same is not the position in Hong Kong. In the United Kingdom, policy statements by a number of Home Secretaries crystallized the position, the presumption being that a prisoner must be released once the tariff period is served provided he presents no continuing risk. Under the Sentences Review Ordinance, however, the legislature has determined that a far broader range of matters must (or may) be taken into account other than the single issue of risk. Those other matters canvas what I may loosely call the assessment of the rehabilitation of the offender. 79.As to the manner in which the Board conducts its reviews, the Ordinance lays down procedures for ensuring that reviews are made on a regular basis. S. 11 obliges the Commissioner of Correctional Services to refer sentences of prisoners for review at certain specified intervals. In respect of prisoners serving indeterminate sentences, which include a specified minimum term, the reviews commence according to a time schedule laid down in s. 11. The process of review commences before the expiration of a prisoner's minimum term but, as I understand it, not immediately on the commencement of the sentence. 80.While the Ordinance provides for the regular review of sentences, it does not allow for a prisoner, of his own motion, to seek a review. 81.When the Board is to conduct a review, the prisoner concerned is entitled to be informed. He must receive adequate notice of the review : see s. 13(2). He must receive copies of all relevant materials in a language he understands : see s. 13(2) and (5). He may only be denied those materials if the Board is satisfied that disclosure of information in those documents would be reasonably likely to jeopardize the safety of others or compromise prison security : see s. 13(3) and (4). 82.The prisoner is also entitled to be heard. S. 12(5) provides that he -
83.Schedule 1 of the Ordinance provides for the prisoner to be represented at the hearing of the review. S. 13(8) of the Schedule states :
84.The Board is a tribunal of record : see schedule 1, s. 14. However, it is not bound by the rules or practice as to evidence and may take into account any matter it thinks appropriate : see s. 12(6). 85.Although the Board possesses broad powers of review, its jurisdiction to act consequent upon a review are limited. As to the determination of a sentence, in respect of prisoners detained at Executive discretion, the Board has the power only to recommend to the Chief Executive that a prisoner's indeterminate sentence be substituted with a determinate sentence. Thereafter, once a determinate sentence is substituted, the Board has the power only to recommend to the Chief Executive that he remit all or part of that determinate sentence. In this regard, s. 15(1) reads :
86.Mr Blanchflower submitted, and I accept, that the reservation of the power to make the final decision under s. 15(1)(a)(i) or (ii) rests with Chief Executive because it is a power reserved to him in terms of Art. 48(12) of the Basic Law, that being the power to commute sentences. 87.However, although the Board has no power to substitute an indeterminate sentence for a determinate one or to remit all or part of a determinate sentence, the Board is vested with the power to order the conditional release of a prisoner who is serving an indeterminate sentence. A conditional order of release will specify how the prisoner will conduct his life outside of prison and will include, for example, directions as to where he will live and work. Conditional release is not a remission of sentence nor a completion of it. S. 27 directs that any period of time during which a prisoner enjoys conditional release is taken to be part of the sentence served. Accordingly, a prisoner subject to an indeterminate sentence, (including detention at Executive discretion) while on conditional release, is nevertheless continuing to serve his indeterminate term. 88.The power of the Board to order a conditional release is, however, limited by the provisions of s. 12(12) of the Ordinance. It states :
89.S. 12(2) is supported by s. 15(3) which reads :
90.As I read it, therefore, while the conditional release of a prisoner may be determined in advance by the Board, it cannot order that such release be made effective until the minimum term has expired. However, the Board may make recommendations to the Chief Executive in terms of s. 15(1)(a)(i) or (ii) at any time during the serving of the minimum term or after and, if accepted, the Chief Executive may exercise his jurisdiction under Art. 48(12) of the Basic Law to bring about the release of a prisoner even though the minimum term has not yet expired. In short, the specification of a minimum term is not a complete bar to release before the term has expired although the Board cannot itself order such release. The challenge to s. 12(2) 91.The constitutional validity of s. 12(2) is challenged on the basis that it contravenes Art. 9(4) of the ICCPR, embodied in Hong Kong's domestic law in Art. 5(4) of the BOR, and is inconsistent with Art. 8 of the Basic Law. Art. 5(4) of the BOR reads :
92.The applicants' challenge to the constitutional validity of s. 12(2) is founded on the nature of their continued detention; that is, detention at Executive discretion. What is contended may be set out in the following set of propositions.
93.It is apparent that these propositions are based essentially on the findings of the House of Lords in R v Secretary of State for the Home Department, ex parte Venables (supra) and the findings of the European Court of Human Rights when the lawfulness of the continued detention of Venables (and his co-condemned, Thompson) was later placed before that court in V v United Kingdom (supra). It is necessary therefore to conduct a brief review of those two cases. 94.The proposition that a young offender detained at Executive discretion may only be detained for so long as that detention remains justified springs from the special nature of the sentence itself. The sentence is not, for example, to be equated with a sentence of life imprisonment imposed on an adult murderer, the sentence being determined to be life and anything less being an act of clemency. In the majority decision of the House of Lords in Venables, I have earlier cited the dicta of Lord Browne-Wilkinson (at 498) but repeat a portion to make the central point :
95.Lord Browne-Wilkinson went on to find that the Home Secretary had acted unlawfully in setting a policy that excluded from consideration the progress and development of a young offender during the time that the offender was serving his tariff period. He said (at 502) :
96.In speaking of progress and development, I am satisfied that Lord Browne-Wilkinson was speaking essentially of matters which the Board under the Sentences Review Ordinance is mandated to consider; namely, matters relevant to rehabilitation. Progress and development must relate to matters such as increasing maturity, education, awareness of the culpability of crimes committed and emotional stability. 97.When the case came to be considered by the European Court in V v United Kingdom, (supra), the court was asked to look to Art. 5(4) of the European Convention which states :
98.The court held that it was not its function to pronounce upon the appropriate length of detention. But, giving that the fixing of a tariff amounted to the 'determination of a sentence', it would limit its consideration to the question of whether the applicant should be able to have the lawfulness of his continued detention decided by a court satisfying the requirements of Art. 5(4). The court continued :
99.In my opinion, the difficulties which the applicants face in seeking to have the line of reasoning applied in Venables and V v United Kingdom applied to their own cases is that there are a number of fundamental differences between their cases and those that came before the House of Lords and the European Court. 100.The first difference is that in Venables and V v United Kingdom, the findings of the courts were concerned with the imposition by administrative means of a tariff period. But, as Mr Blanchflower submitted, it would be wrong to make the assumption that a 'tariff period' and a 'minimum term' are essentially the same. I agree with that submission. 101.By a statement of policy made at the highest levels of government, the tariff period in the United Kingdom represents the full duration of detention imposed upon young offenders held at Her Majesty's pleasure. This is subject only to the single exception of continuing risk to the community. The tariff period is, therefore, for all practical purposes in the great majority of cases, the sentence that must be served. But a sentence of detention at Her Majesty's pleasure is a sentence which, by its nature, requires during the time it is being served, a review of the young offender's progress so that matters not only of punishment and deterrence may be taken into account but matters too of the offender's welfare and development. As I understand it, therefore, what has been declared unlawful by the House of Lords is that the Home Secretary, in fixing a tariff period, effectively determined the sentence of imprisonment and yet, during that term, excluded from his consideration all matters of welfare and development. 102.In this jurisdiction, however, the concept of a minimum term - governed by legislation - carries with it no direction (nor indeed any implication) that, with the exception of continuing risk to the community, it will constitute the full term that a young offender must serve. To the contrary, repeating the words of Stock JA in HKSAR v Hui Chi Wai and Others (supra), a minimum term -
103.A minimum term, therefore is not designed to provide what in substance is a fixed term of imprisonment in lieu of an indeterminate term. 104.The Sentences Review Ordinance makes provision for the continuing review of a young offender's progress and development during the span of that offender's detention. Indeed, the essential work of the Board is to monitor the progress and development of young offenders in determining how long they should lawfully remain in custody. The power of the Board to conduct reviews may be limited pending the expiration of the minimum term but, as I have said, the minimum term is not constituted as a tariff period to effectively determine the full length of sentence. It is constituted only as the initial, minimum period that must be served before the determination of the full sentence is assessed according to the measure of a prisoner's rehabilitation. 105.At this juncture, I believe it is important to recognize that the concept of a minimum term in Hong Kong is contained in legislation. It is not simply the creation of administrative policy. As such, it reflects the intention of our legislature to ensure that indeterminate sentences are reviewed in a more transparent way than in the past and that a greater degree of certainty is given to young offenders in comprehending how long they may have to remain in detention. Under the legislation, indeterminate sentences are now split into two periods : the initial minimum period to reflect retribution and deterrence and thereafter the remainder of the sentence in which rehabilitation is demonstrated. There is therefore a balance achieved (by our legislature) between the punitive demands of the indeterminate sentence and the welfare of the offender. That, in my judgment, is fundamentally different from the administrative determination of sentences contained in the concept of a tariff period. 106.For those persons sentenced before the coming into effect of the legislation, the legislature has attempted to ensure that the same benefits of greater transparency and greater certainly are available. The attempt to obtain fairness between essentially the same class of prisoners separated only by a date in history is a legitimate aim. The legislature must in this be granted a margin of discretion, certainly a greater margin than is afforded to an administrative body or individual member of the executive. In this regard, for example, see the recent authority of Cough v Chief Constable of the Derbyshire Constabulary [2001] 3 WLR 1392 (at 1428) :
107.I move now to a further difference. In V v United Kingdom (para 119), it is said that Art. 5(4) of the European Convention requires that, having served his tariff period, a young offender should be able periodically to challenge the continuing legality of his detention since its only justification at that stage could be dangerousness, a characteristic subject to change. But continued detention on the single basis of risk to the community is a feature of the policy laid down by Home Secretaries in the United Kingdom not detention at Executive discretion as that is determined under our legislation. What is considered by the Board in terms of the Sentences Review Ordinance is not the presence or absence of a single characteristic but rather the movement of a young offender towards rehabilitation. 108.It was contended on behalf of the applicants that it would be unlawful, upon the expiration of a minimum term, to continue to detain a young offender other than on the grounds of his dangerousness to the community. As I understand the argument, it was to the effect that matters of progress and development must be reviewed during the minimum term and once that term is extinguished the offender may only be detained on the single ground of risk. I reject that contention. The pronouncements of the European Court were made in respect of the particular constituent terms of the United Kingdom system of review. They were not pronouncements of a general nature as to the lawfulness of the manner in which indeterminate sentences must be reviewed and brought to certainty. 109.A further argument under this heading was to the effect that to continue to detain a young offender after he has served his period of punishment (i.e. the minimum term) would be to detain him for no reason connected with the commission of his offence. But under the Hong Kong statutory regime the punishment, of course, is not solely the minimum term - which I emphasis again is different from the tariff period - the punishment is detention at Executive discretion. In serving out that punishment, an offender must expect to serve a period of time to meet the imperatives of retribution and deterrence and must expect to demonstrate too that he has sufficiently progressed and developed so that he may be returned to the community. 110.In the circumstances, therefore, in my judgment, the Hong Kong statutory regime does not fall subject to the same findings made in Venables or V v United Kingdom. 111.In any event, unlike the imposition of a tariff period by the Home Secretary in the United Kingdom, the Hong Kong statutory scheme provides a mechanism for the judicial determination of that period of time which must be served in each case to meet the imperatives of retribution and deterrence. Accordingly, the criticism of the European Court contained in para. 120 of its judgment in V v United Kingdom has no relevance to the determination of a minimum term under Hong Kong statute as the supervision required by Art. 5(4) of the BOR (if it be required) is incorporated in the trial court's sentence. 112.It is correct, of course, that the applicants were sentenced before the new statutory regime came into law. It is correct too that their minimum terms have been specified by an administrative not a judicial process. But I have found that the legislation mandating that administrative process is inconsistent with Art. 80 of the Basic Law. If, however, that inconsistency is removed and the applicants have their minimum terms determined by the exercise of judicial power then there will be no difference between their situation and those sentenced under the new statutory regime. Any supervision by the courts that may be required under Art. 5(4) will then be incorporated in the exercise of that judicial power. 113.In this regard, it must be remembered that the applicants do not seek relief as to the manner in which they personally have been denied access to a court under Art. 5(4). They seek a declaration in general that s. 12(2) of the Sentences Review Ordinance is inconsistent with Art. 5(4) of the BOR. 114.In my view, there is no inconsistency, certainly not in respect of young offenders sentenced under the new statutory regime. For persons sentenced before, such as the applicants, their complaint lies in the fact that their minimum terms have not be determined by the exercise of judicial power. Once that constitutional inconsistency is removed then, as I have said, they find themselves in exactly the same position on those sentenced under the new statutory regime. 115.But even if I am wrong in this regard, it seems to me that, in terms of Art. 5(4) of the BOR, the applicants (and those in their position) do have recourse to the courts in order to obtain a decision on the lawfulness of their continued detention. That recourse lies by way of the ancient prerogative writ of habeas corpus. The rights encompassed in those proceedings have been left untouched by twentieth century procedural reforms to other prerogative writs. As the authors, de Smith, Woolf and Jowell say in Judicial Review of Administrative Action (5th Ed.) (673), the specific purpose of the remedy is to secure the release of a person who is unlawfully detained. 116.The European court has on occasions been critical of the ability of habeas corpus proceedings to sufficiently safeguard rights guaranteed under the European Convention. But that, of course, is in respect of the European Convention and the body of jurisprudence built around it. 117.I am of the opinion, however, that it would be wrong to seek to interpret Art. 5(4) of the BOR by placing too heavy an emphasis on the jurisprudence of the European Court as to its interpretation of Art. 5(4) of the European Convention. The ICCPR and the European Convention, although both looking to the affirmation, protection and promotion of human rights are different documents created for different purposes and seek to bind different communities to their principles. 118.The ICCPR was adopted by the General Assembly of the United Nations in December 1966. It was drawn up in recognition of the inherent dignity of all persons and the inalienable rights that should be afforded to them whatever their culture, whatever the political or legal constitutions under which they live or the economic development of their communities. It is, therefore, intended as a 'universal' document. While not a blue print for ideal societies, it seeks nevertheless to afford the protection of fundamental rights within the context of the great diversity of peoples of which I have spoken. I am told that, as at 31 January of this year, the ICCPR had been adopted by some 147 states parties. 119.The European Convention, although it came into force in 1953, does not aim to have the same universality as the ICCPR. It recognises, of course, the existence of certain universal human rights but it seeks to bind a far more limited group of states parties, essentially European states bound together not only by geography but by a similar political and cultural heritage and, critically in my view, by a desire to bond together into a community of states (the European Union) in which laws are or would become harmonious. Indeed, the preamble to the text of the European Convention reads (in part) :
120.Against that background, it is prudent, I believe, to emphasis that the entrenched provisions of the BOR are born of the ICCPR and not of the European Convention. The provisions of the ICCPR that were to be applied to Hong Kong were incorporated into our domestic law in June 1991 with the promulgation of the Bill of Rights Ordinance, at the same time being entrenched constitutionally by an amendment to the Letters Patent. With the change of sovereignty, Art. 39 of the Basic Law ensured, what Mr Blanchflower has aptly called, a 'seamless transition', Art. 39 providing that :
121.It has been submitted on behalf of the applicants that to differentiate between the rights protected under the ICCPR and essentially the same rights protected under the European Convention implies 'cultural relativism', suggesting that fundamental human rights vary across cultures. But that, in my view, is to misunderstand the point. The ICCPR, looking to a greater diversity of States parties, has, in terms of Art. 9(4), sought to protect a fundamental right by way of habeas corpus proceedings or proceedings akin to them. The European Court, looking to the European Convention, has built a body of jurisprudence to suggest that in certain respects habeas corpus is not sufficient as a form of proceedings. The issue is to the form of proceeding, not to the fundamental rights that are protected. 122.As I have said earlier in this judgment, I accept that valuable guidance may be obtained from decisions of the European Court but that is subject to the caveat sounded by Lord Woolf in Attorney-General of Hong Kong v Lee Kwong-Kut [1993] 2 HKLR 51 (PC) when he said :
123.What then of Art. 9(4) of the ICCPR, what rights are protected by it? Academic commentaries on Art. 9(4) make it plain that the rights that are protected are essentially the rights embodied in habeas corpus proceedings. 124.As to the origins of Art. 9(4) of the ICCPR, the authors Joseph, Schultz and Castan in The International Covenant on Civil and Political Rights : Cases Materials and Commentary (Oxford Press, 2000) state the following (at page 230) :
125.That Art. 9(4) incorporates the protective rights of habeas corpus finds tangible form in New Zealand's domestic legislation. The New Zealand Bill of Rights Act 1990 states in its preamble that one of its principle purposes is to affirm that country's commitment to the ICCPR. S. 23 of the Act is concerned with the rights of persons who are arrested or detained and subsection (c) directs that everyone who is arrested or who is detained under any enactment shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful. 126.The remedy of habeas corpus has always been available to young offenders such as the applicants who are serving indeterminate sentences. Such proceedings would lead to a review of the lawfulness of their continued detention, that lawfulness encompassing both the procedural and the substantive basis of their detention. It would therefore be possible by way of habeas corpus proceedings to challenge the lawfulness of their continued detention under the BOR, that being the embodiment of the ICCPR in our law. When so viewed, habeas corpus proceedings are sufficiently elastic to cover alleged breaches of all such fundamental rights as are incorporated into our law through Art. 39 of the Basic Law. That this is so is illustrated by an opinion of the United Nations Human Rights Committee in A v Australia (560/93) in which the following was said :
127.Accordingly, I am satisfied that the rights intended to be protected by Art. 5(4) of the BOR are the rights contained in the prerogative writ of habeas corpus and that, in respect of the 'lawfulness' of the continued detention of the applicants and those in their position, habeas corpus proceedings may be employed effectively and fully to protect their rights both under the Basic Law and Hong Kong's municipal statutes. My orders 128.Consequent upon my findings, the following orders are made :
Costs 129.As the applicants have been partially successful but not fully so, it will be necessary to hear counsel as to costs. The order for costs is therefore reserved.
Representation: Mr John Griffiths, SC leading Mr Andrew Bullett, instructed by Messrs Fung & Fung, for the Applicant Mr Michael Blanchflower, SC leading Mr Ned Lai, GC of the Department of Justice, for the Respondent Remarks: Appeal by the applicants to Court of Appeal. Appeal dismissed. Please refer to the appeal judgment of CACV000377/2002. |
Cases cited in this judgment