Secretary for Justice v. Au Kwok Leung
Read the full judgment text of HCMP 2251/2004 on BabelCite. This High Court CFI judgment was delivered on 2 March 2005.
1. This is an application by the Secretary for Justice pursuant to section 67C(1) of the Criminal Procedure Ordinance, Cap.221 (“the Ordinance”) for a determination under section 67C(3) of a minimum term for the sentence of the respondent Au Kwok Leung imposed by the High Court in HCCC295/1984.
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HCMP2251/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO.2251 OF 2004 ---------------------------
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------------------- Before : Hon Pang J in Court Date of Hearing : 24 January 2005 Date of Judgment : 2 March 2005 ----------------------- J U D G M E N T ---------------------- 1.This is an application by the Secretary for Justice pursuant to section 67C(1) of the Criminal Procedure Ordinance, Cap.221 (“the Ordinance”) for a determination under section 67C(3) of a minimum term for the sentence of the respondent Au Kwok Leung imposed by the High Court in HCCC295/1984. Background 2.On 5 March 1985, after his trial before de Basto J in the High Court sitting with a jury, the respondent was convicted of five counts of robbery and four counts of rape. For each of the robbery counts he was sentenced to 13 years’ imprisonment to be served concurrently. For each of the rape counts he was sentenced to life imprisonment. 3.The respondent applied for leave to appeal against his conviction and sentence. His appeal application were dismissed by the Court of Appeal on 23 July 1985. At the time of this application, the respondent has been in custody for 20 years. 4.In 1996 section 67B of the Ordinance was enacted. Under that section a sentencer who imposed a discretionary life term was required to at the same time of the sentence state a minimum term of imprisonment that the prisoner must serve. This enactment, however, did not affect those, the respondent included, who were sentenced to life imprisonment for conviction of offences other than murder. 5.In 1997 the former section 67C of the Ordinance was enacted. Under that section the Chief Executive was empowered to determine, on the recommendation by the Chief Justice, the minimum term to be served by a prisoner who was then serving a discretionary life sentence. In 1998 the Chief Executive duly made a determination pursuant to that section of the Ordinance. 6.In Yau Kwong Man & Others v. Secretary for Security [2002] 3 HKC 457, Hartmann J held that the powers vested in the Chief Executive under section 67C of the Ordinance were judicial powers and hence unconstitutional when they were exercised by the executive. The result of the decision was such that the respondent, together with a number of other prisoners who were serving a discretionary life term imposed before 1996, were left in a position where they did not have a lawfully determined minimum term. 7.The legislature acted promptly to remedy the situation. The Criminal Procedure (Amendment) Ordinance came into operation on 15 July 2004. The former sections 67C to 67E of the Ordinance were repealed. The new sections 67C(1) and (3) provide :
8.A judge of the Court of First Instance is empowered under the new legislation to determine the minimum term to be served by prescribed prisoners who were sentenced to a discretionary life term. 9.The object of the present exercise is therefore for this court to determine the minimum term which the respondent must serve for the four rape counts for which he was sentenced to life imprisonment in 1985. 10.The background of this case is succinctly summed up by the trial judge to the jury. He said :
11.The modus operandi of the respondent invariably involved the respondent stalking the intended victims in the very early morning hours. He would follow the victims into the lifts and declared robbery, and afterwards threatened them with weapons before raping them. 12.The respondent was born in February of 1952 and he has a string of convictions starting from 1964 when he was aged 12. In 1978, he was sentenced concurrent sentences of eight years’ imprisonment for an offence of rape and four years for robbery. He committed the present series of offences not long after he was released from prison. 13.The trial judge made the following observations in passing sentence :
14.Towards the end, the trial judge made a recommendation that the respondent should serve at least 20 years’ imprisonment. 15.Their Lordships’ judgment in the Court of Appeal in dismissing the respondent’s application to appeal against his sentence is not available to this court. Meaning of “minimum term” 16.Under the present legislation, this court is required to determine a minimum term for which the respondent must serve for the four rape counts on an application by the Secretary for Justice. The expression “minimum term” is not defined in the Ordinance but defined in section 4 of the Long Term Prison Sentences Review Ordinance, Cap.524 as :
This definition offers very little by way of explanation as to the meaning of the words. The term however, received judicial consideration in HKSAR v. Hui Chi Wai (No.2) [2003] 2 HKC 582 at 591B where Stock JA said :
17.The term was also considered by Hartmann J in Yau Kwong Man and Ors v. Secretary for Justice [2002] 3 HKC 457. Having reviewed the English practice the judge observed :
18.In HKSAR v. Cheung Lai Man [2004] 2 HKLRD 473 at 488, Yeung JA said :
19.It could be distilled from the above passages that the ‘minimum term’ is the prison term imposed on the prisoner to reflect the gravity of the offences he committed and to reflect retribution and deterrence. It does not follow, nor is it specified anywhere under the legislative provisions that the prisoner would be released after having served the minimum term. One needs to look at the wider legislative scheme as to what would happen to a prisoner at the expiration of the minimum term. The Long Term Prison Sentences Review Board 20.The Long Term Prison Sentences Review Ordinance, Cap.524 confers wide powers on the Long Term Prison Sentences Review Board (“the Board”), a body appointed by the Chief Executive. The Board is empowered to conduct reviews of prisoners serving indeterminate and long-term sentences. Section 12(2) of that ordinance expressly provides :
21.For those prisoners who had already served the minimum term, the Board will consider at regular intervals and make recommendation to the Chief Executive as to how best to deal with the prisoner. Such recommendations may include substituting a determinate sentence or releasing the prisoners in appropriate cases. The effect of the present legislative scheme is that where a sentencing judge saw fit to impose a discretionary life sentence, he is required, under section 67B of the Ordinance, to recommend a minimum term for which the prisoner must serve. The length of the minimum term is determined by reference to the gravity of the offences and with appropriate consideration given to the factors of deterrence and retribution. That being the case the judge hearing an application under section 67C, in my view, should place himself into the position of the original sentencing judge and recommend a minimum term based on similar considerations. The court’s approach 22.A considerable time might have elapsed between the original sentence and the application under section 67C. There might have been significant developments since the respondent’s incarceration so that section 67C(5)(a) provides the judge may :
By virtue of the above provision, the judge making the determination may take into account any material which have become available to him since the original sentence was passed. The relevant material must include Correctional Services reports, psychological and psychiatric reports and submissions by the respondent himself. The test is one of relevance to the determination. The categories of relevant materials are not closed and would be peculiar to each respondent. 23.The judge in the present exercise is however expressly precluded from taking into account the previous recommendation or the previous determination by the Chief Executive and the Chief Justice (section 67C(5)(b)). However, in cases where there had been an appeal against the original sentence, this court is bound by the judgment of the Court of Appeal. Where the Court of Appeal had expressed a view or made observations as to what the minimum time to be served by the prisoner should be, the court should give regard to those views and observations. The appropriate “minimum term” 24.The respondent is presently undergoing an intensive treatment programme designed for sexual offenders in the Siu Lam Psychiatric Centre. The clinical psychologist Dr Judy Hui observed in her report dated 18 January 2005 that :
25.However, despite these encouraging signs of development, on the issue of the respondent’s risk of re-offending Dr Hui reported that :
The doctor concluded her report by observing :
26.In the report by Dr C.H. Yuen dated 8 January 2005, the visiting consultant psychiatrist to the Siu Lam Psychiatric Centre, the doctor adopted a much more cautious approach to the problems of the respondent. He said towards the end of his report :
27.No doubt the Long Term Prison Sentences Review Board will address these issues fully when the respondent appears before members of the Board in the future. 28.In the report prepared by the Correctional Services Department dated 19 December 2003 at which time the respondent was still serving in the Shek Pik Prison, the overall performance of the respondent was given a grade of B+. It is noted that during his incarceration he had taken up extra-mural courses in relation to “Buddhist Studies”. In 1994 he had obtained a satisfactory result in the Hong Kong Certificate of Education Examination in that subject. 29.In Cheung Lai Man (supra), the Court of Appeal set aside three concurrent terms of life imprisonment imposed on the appellant on three counts of rape to which he pleaded guilty. The victims in that case were students aged between 12 and 21 and were attacked while on their way to school. It was a premeditated and well-planned attack and the assaults were recorded on video tapes that formed part of the appellant’s pornographic collection. The sentencing judge specified a minimum term of 20 years’ imprisonment. In substituting a starting point of 18 years for each count of rape, the Court of Appeal gave a 1/3 reduction to reflect the guilty pleas. The six years on each of the remaining two counts of rape were ordered to run consecutively to the 12 years on the 1st rape count. The total sentence imposed on the appellant was one of 24 years’ imprisonment. 30.The Court of Appeal in Cheung Lai Man furtherobserved that the original minimum term of 20 years’ imprisonment was excessive. If one is to work backwards, and give appropriate discounts for the appellant’s guilty plea and the remission he would have been given under the Prisons Ordinance, Cap. 234, the original sentence was equivalent to an effective starting point of up to 45 years’ imprisonment. 31.If the respondent is sentenced today for the rape offences he would have attracted a term of 12 years for each count of rape. The respondent was convicted after trial so there would have been no discount at all from the starting point of 12 years’ imprisonment. The total prison term for the rape counts, if served consecutively, would have meant a sentence of 48 years’ imprisonment. Bearing in mind the totality principle a global sentence of between 30 to 35 years would not have been inappropriate. Taking the lower figure of 30 years, a prisoner is entitled to a remission of up to 1/3 of the total actual prison term for his industry and good conduct pursuant to rule 69(1) of the Prison Rules of the Prisons Ordinance, Cap.234. Given the 1/3 remission the nett term should be served by the respondent would have been a term of 20 years’ imprisonment. 32.For the reasons stated, I determine the minimum prison term the respondent must serve for the rape offences to be 20 years.
Mr D.G. Saw, SC, DDPP and Mr Vincent Wong, SGC of DPP, for HKSAR Mr Ho Bing Kwan, instructed by Messrs Jack Fong & Co., assigned by DLA, for the Respondent |
Cases cited in this judgment