Secretary for Justice v. Lau Man Po

HCMP2212/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.2212 OF 2004

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BETWEEN

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Before : Hon Pang J in Court

Dates of Hearing : 1 December 2004 and 25 February 2005

Date of Judgment : 18 March 2005

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J U D G M E N T

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1.This is an application by the Secretary for Justice pursuant to section 67C(1) of the Criminal Procedure Ordinance, Cap.221 (“CPO”) for a determination under section 67C(3) and (4) of the CPO.

Background

2.The respondent Lau Man Po belongs to a class of prisoners who were convicted of the offence of murder at the time when they were below the age of 18.  The respondent was born on 25 April 1965.  He was tried in the High Court before Commissioner Evans sitting with a jury on one count of murder.  On 16 March 1983, he was convicted and was sentenced to be detained until Her Majesty’s Pleasure shall be known.

3.The offence took place in the small hours of 2 April 1982 at a flat in Argyle Street, Kowloon.  The respondent is the son of the then caretaker of the building in which the killing took place.  The deceased, an old lady of 80, was residing in a flat on the 10^th floor.  What transpired was that the respondent gained entry into the flat from the roof of the building through a ventilation window intending to steal valuables from the premises.  In the course of the burglary the respondent stabbed and killed the deceased.

4.In his report dated 21 March 1983 to the Governor of Hong Kong, Commissioner Evans gave a detailed summary of the case :

“The accused admitted killing the deceased, an 80 years old lady, during the course of events which occurred after he had entered her apartment between 1-2 am on the morning of the 2^nd April 1982 in order to steal.

The accused is the son of the then caretaker of the building in which the killing took place and would have been known to the deceased as such.

At the time that the offence took place only the deceased was in her 3-bedroom 10/F flat although an amah was in quarters to the rear.  The deceased’s daughter who customarily lived there was away on vacation in America.

The accused gained entry from the roof of the building via a ventilation window of one of the bedrooms and later left by the same route leaving a blood trail, a palm print and fibres from his trousers as he did so.

The deceased was found at 7 am laying on her right side in bed partly covered by a quilt.  The bedding was heavily bloodstained and her handbag (which it was her custom to place by her pillow) lay by her side with the zipper open.  Inside that handbag was a receipt with a small splash of blood on it of her blood type (Group B) and under the quilt was a fruit knife which the accused agreed (when he gave evidence) was the knife that had been used in the killing and was indeed a knife from the deceased’s kitchen which the accused had got while in the premises.  There was no evidence that he had entered the flat with a weapon.  Beneath the mattress of the bed was found a pair of bloodstained gloves (deceased’s blood type) which the accused admitted he wore when he entered the premises.

….

The cause of death was the stab wound on the upper left arm with injury to the left Cephalic vein.  Time of death was about 1 am.  The needle wound in the chest caused bleeding to the chest cavity thus contributing to total blood loss thereby accelerating death but it did not cause it.  Death was due to bleeding from the Cephalic vein.

The doctor agreed that little force was required for the stab wounds and that the injuries themselves would not have caused death and that if the Cephalic vein have not been pierced, the deceased would have had a good chance of surviving.  I directed the jury to the effect that they were not concerned with chances but with consequences and the intent of the person inflicting the injury.

The accused became a suspect when there was found in a room on the roof where he occasionally slept [sic] a note addressed to his father.  That note had on it a water diluted splash of blood.  He had also gone missing.

He was however in contact with members of his family and through them at 7 am on the 4^th April 1982 by arrangement he met police outside a theatre in Shamshuipo and was taken in custody.

He was then questioned in the presence of his father and a statement recorded.  That record of interview became an exhibit before the jury after a hearing in the jury’s absence to determine is voluntairness.  The accused contended, by an assortment of allegations (which I, and the jury in turn, rejected) that it was got in consequence of beatings and pressure and was, in any event, as regards part, inaccurate.

In that statement, inter alia, he said :-

‘When I entered the premises I found the door of one of the rooms inside the premises open and the light was on.  I peeped inside and saw a woman sleeping in bed.  I then sat down in the sitting room.  About half an hour later I went into the kitchen and took a knife.  Then I went into the room and wanted to steal something.  But when I entered the room the old thing (the woman) woke up an tried to get up.  I was frightened and stabbed the woman once in her right hand with the knife.  I saw the woman bleeding and was very much frightened.  So I covered her with a blanket.  Then I stabbed her two or three more times in the body.  I did not hear the woman shout.  I searched the handbag which was placed on one end of the bed of the woman.  I did not take anything.  I was afraid and took off the pair of gloves immediately and put them under the mattress of the bed of the woman.  I also threw down the knife.  Then I climbed out through the window via which I had obtained entry and went up to the rooftop.  I washed my hands at the water tap on the rooftop.  Then I immediately went downstairs by lift and left Saphire Court.’

The Crown made it clear that it did not accept all of this story for a number of reasons including the fact that there were no stab holes in the deceased’s quilt and there was contact evidence in the form of fibres from the accused’s trousers on the bedding (he denied ever being on the bed), her jacket, trousers and body.

The accused gave evidence to the effect that when he saw the lights on in the deceased’s room he became frightened and so walked to and fro in the sitting room for something like half an hour then went to the kitchen where he picked up the fruit knife to protect himself from some ‘unforeseen event’.  He then left the kitchen ‘to steal something’.

When he was by the deceased’s bedroom door she woke up and said ‘Who’s there?’.  He told her he just wanted to steal and walked toward the bed, intending, he said, to tell her that he didn’t want to hurt her but was just there to steal.  As he approached she tried to grab the knife and then a struggle developed.  She was sitting during the struggle but eventually he was able to push her away and leave.

He couldn’t recall how the deceased got the wounds she did nor did he remember what happened to the knife.  He took nothing, he said, from the apartment nor did he touch the handbag.

Quite clearly the jury did not believe these stories and were of the view that the accused intended to kill or inflict serious bodily harm and was thereby guilty of murder.  That is the verdict with which I agree. ….”

5.The respondent appealed against his conviction to the Court of Appeal and the application was dismissed on 4 January 1984.  The judgment of Their Lordships is not available before this court. 

6.In 1993, section 70 of the CPO was repealed.  Sentences for which a prisoner was to be detained at Her Majesty’s Pleasure were no longer given.  Subsequent to the enactment, all persons who were convicted of murder, regardless of the age, were given mandatory life sentences. 

7.In 1996, section 2 of the Offence Against the Person Ordinance (OAPO), Cap.212 was amended and section 67B of the CPO enacted.  The amendments to section 2 gave to the sentencing judge the discretion to impose on a person convicted of Murder who was under the age of 18 either a life term or a fixed term.  The contemporaneous enactment of section 67B of the CPO required that a sentencer who imposed a discretionary life term was required at the same time to nominate a minimum term of imprisonment for which the prisoner must serve for the offence.

8.Thus there are two types of prisoners who may be sentenced to discretionary life terms :

(a)	those convicted of Murder but who are under the age of 18 at the time of the commission of the offence (and not sentenced to a fixed term); and
(b)	those convicted of offences other than Murder which have as their maximum penalty a life term.

In either case, a minimum term must be fixed by virtue of section 67B of the CPO.

9.At the time of the enactments in 1996, there were a number of serving prisoners who were not affected by the changes brought about by the then new legislation.  They were, in effect, in three groups, namely :

(a)	those who were detained at Her Majesty’s Pleasure;
(b)	those sentenced to Life Imprisonment albeit that at the time of their offences were under the age of 18 (mandatory life terms); and
(c)	those sentenced to Life Imprisonment for offences other than Murder but where no minimum term was fixed.

10.Sections 67C, D and E of the CPO were enacted at the same time to provide for these prisoners.  The effect of the provisions were that for those prisoners who fell into the above categories, the Chief Executive, on the advice of the Chief Justice, would fix a minimum term.  A minimum prison term was determined for the respondent in June 1998.  

11.After resumption of sovereignty in 1997 those prisoners who were formally detained at Her Majesty’s Pleasure were continued to be detained at Executive discretion. 

12.In Yau Kwong Man & Lai Hung Wai v. Secretary for Security [2002] 3 HKC 457, Hartmann J ruled that section 67C of the CPO was inconsistent with article 80 of the Basic Law and therefore invalid.  At page 479 of the judgment, he said :

“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.”

13.As a result of the decision, prisoners serving discretionary life sentences or detained at Executive discretion are left with no lawfully determined minimum terms.  They are still detained pursuant to Executive discretion.

The Criminal Procedure (Amendment) Ordinance 2004

14.To provide a remedy for the situation the Criminal Procedure (Amendment) Ordinance 2004 was enacted and came into operation on 16 July 2004.  The new legislation provides for a revised scheme for the determination of the minimum prison term to be served by a class of prisoners described as “prescribed prisoners” (section 67G).  A “prescribed prisoner” is a prisoner who falls under one of the following three categories :

(i)	those serving a discretionary life sentence in respect of the conviction of any offence;
(ii)	those serving a mandatory life sentence in respect of the conviction of murder committed when the prisoner was under 18 years of age; or
(iii)	those detained at Executive discretion in respect of the conviction of any offence.

The respondent belongs to the last category of prisoners. 

15.Under section 67C(1), the Secretary for Justice is required to apply to the Court of First Instance as soon as practicable and within six months from the date the enactment for a determination by a judge of the minimum term that a prisoner must serve.  Since the Ordinance came into effect on 16 July 2004, the last date for the Secretary for Justice to make the application would therefore fall on 15 January 2005.  The phrase “as soon as practicable” imports a sense of urgency into this piece of legislation and to the proceedings arising therefrom.  The concern of the legislature is entirely understandable as subsequent to the Yau’s case, the Prescribed Prisoners are left without a lawfully determined sentence.  In the interest of justice, this uncertain state of affairs must be resolved expeditiously. 

16.The key operative provisions can be found at sections 67C(3) and (4) :

“	(3)	Subject to subsection (4), the judge hearing an application under subsection (1) or (2) must determine the minimum term that the prescribed prisoner must serve for the relevant offence.
	(4)	Where the prescribed prisoner is serving the relevant sentence in respect of the conviction of murder committed when he was under 18 years of age, then, subject to the consent of the prescribed prisoner to the application of this subsection to him, the judge has the discretion as to whether —
		(a)	to make a determination under subsection (3); or
		(b)	to determine instead that the relevant sentence be quashed, and be substituted by a sentence of imprisonment for a fixed term of such duration as the judge considers appropriate.”

17.The effects of these subsections are that any Prescribed Prisoner coming before the judge on an application is entitled to know the minimum term that he must serve for the relevant offence.  For prisoners coming under subsection (4), subject to the prisoner’s consent to the application of subsection (4) to him, the judge hearing the application has the choice of determining the minimum term or to impose a fixed term of imprisonment.

18.My reading of subsection (4)(b) is that it confers on the judge hearing the application the power to quash a lawful sentence imposed by another judge of the High Court or the then Supreme Court.  The power to quash a lawful sentence would have been, in normal circumstances, exercisable only by an appellate court.  The fact that a court of parallel jurisdiction is conferred such powers suggests that this power should be exercised only in the most appropriate circumstances and when the case wholly justifies such a course to be taken.  I shall revert to this subsection later in this judgment.

19.Section 67C(5) provides guidance on how the judge should make a determination :

“(5)	In making a determination under this section —
	(a)	subject to paragraph (b), the judge may take into account any material submitted to him by the Secretary for Justice or the prescribed prisoner that is, in his opinion, relevant to the determination; and
	(b)	the judge must not take into account the previous recommendation or the previous determination.”

20.My reading of subsection 5(a) is that the judge may take into consideration all material submitted to him and which he considers to be relevant.  Those material must, by implication, include material which become available subsequent to the original sentence.  This is in fact the common approach adopted by both parties in this hearing.  It makes tremendous sense for it would be absurd if the judge, on the one hand, is empowered to quash the original sentence but is yet required to confine himself only to what must be the outdated material that was before the judge passing the original sentence.

The application of section 67C(4)(a) and (b)

21.The next issue that needs to be addressed is whether it is appropriate for me to make a determination of the minimum term pursuant to section 67C(4)(a) or for an order to quash the relevant sentence and substitute it by a fixed imprisonment term pursuant to section 67(4)(b).  To resolve this issue, I think it is necessary to determine the exact nature of the sentence of detention at Her Majesty’s Pleasure; the subsequent development in the Hong Kong legislation and the effect they have on those so detained. 

22.The true nature of the sentence of detention at Her Majesty’s Pleasure was considered by the English House of Lords in R. v. Secretary of State for the Home Department, ex parte Venables [1998] AC 407.  In a majority decision, the House of Lords observed that detention at Her Majesty’s Pleasure was not the same as a sentence of life imprisonment.  It was a more lenient sentence which is wholly discretionary.  In Lord Hope’s speech, at page 532 he said :

“… the sentence of detention during Her Majesty’s pleasure is a separate and distinct sentence from that of life imprisonment.  It recognizes the special characteristics of the young offender, and especially of the child offender.  There is built into the sentence a measure of leniency in view of the age of the offender at the time of the offence. … He is to be detained without limit of time, but expressly on terms which do not deprive him of his liberty for the rest of his days.”

23.At page 498 Lord Browne-Wilkinson stated :

“Detention during Her Majesty’s pleasure is wholly indeterminate in duration : it last so long as Her Majesty (i.e. the Secretary of State) considers appropriate …”. 

His Lordship expressly stated that this sentence is not the same as a mandatory life sentence imposed on an adult murderer.

24.After the resumption of sovereignty in 1997, those prisoners who were formerly detained at Her Majesty’s Pleasure had since been detained under Executive discretion.  Although there had been a change of terminology, the nature of detention remained unchanged : the prisoner is still detained for indeterminate duration at the discretion of the Executive.  

25.In the case of the respondent, if the murder was committed after the enactment of section 2 of the OAPO in 1993, he would have been sentenced to life imprisonment.  This provision is applicable irrespective of an offender’s age.  This has the effect of a mandatory life imprisonment.

26.Then came 1996.  Section 2 of the OAPO was amended and section 67B of the CPO was enacted.  For a person under 18 who was convicted of murder, the judge had the discretion either to sentence the offender to a life term or to a fixed term of imprisonment.  Section 67B of the CPO provides that sentencer who imposed a discretionary life term was required to nominate a minimum term of imprisonment to be served by the prisoner.  This however does not apply to those who were sentenced to serve a fixed term.  In the case of the respondent, had he committed the offence after 1996, he would have either been sentenced to a life term with a recommended minimum term of imprisonment or to a fixed term.  

27.Pursuant to the repealed section 67C, the Chief Executive fixed a minimum term for the respondent in June 1998.  Without revisiting the constitutional validity of the order for a minimum term which had been resolved by Hartmann J in Yau Kwong Man’s case, it appears that in fixing a minimum term for a prisoner, there had been an assumption that the prisoner had been sentenced to a life term.  The reason being that if the respondent was sentenced to a fixed term, a minimum term would not have been required at all.

28.In the case of the respondent, and for all prisoners who were detained at Her Majesty’s Pleasure, what had started as a indeterminate sentence, which is not a life sentence, had become, by the operation of section 67C, a life sentence for which they received a minimum term ordered by the Chief Executive.  This latter sentence is very different for the more lenient sentence of detention at Her Majesty’s Pleasure.  This is a clear infringement of their rights under Article 12 of the Hong Kong Bill of Rights which provides :

“Article 12
No retrospective criminal offences or penalties

(1)   No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under Hong Kong or international law, at the time when it was committed.  Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.”  (My emphasis)

I do not think it can be seriously argued that being detained at Executive discretion is a more severe penalty than a life term.  The converse must be true.

29.If I were to impose a minimum term without first passing a notional life term on the prisoner, I can foresee some interesting developments.  In the future when the respondent had served out the minimum term and the respondent is considered by the Long Term Prison Sentence Review Board not sufficiently fit for release who then would have the authority to order further detention of the respondent?  Without first passing a life sentence, the minimum term would have very little meaning.  It is doubtful if the Board, not being appointed by the Chief Executive on recommendation of the Judicial Officers Recommendation Commission, would have the authority to order further detention of the respondent which I consider to be, in essence, a judicial function.  In the event that the respondent has to appear before the court again for an order of further detention, it would have defeated the purpose of the present exercise for the respondent is still facing a sentence of indeterminate duration.

30.In my view, prisoners belonging to this category, the respondent included, should be given a fixed-term sentence based on the reasons stated above.  Not only would a fixed-term sentence be a more lenient sentence compared to a life term, it would also serve to remove any element of uncertainty in the minds of the prisoners as to how much longer they would have to be detained. 

31.Even if I was wrong in my interpretation of section 67C(3) and (4) of the CPO in respect of this class of prisoners, I would still be of the view that the proper approach, in so far as they are concerned, is to quash the original sentence and pass a fixed term sentence.  A minimum term sentence is indeterminate in nature and is open-ended.  As far as I am aware there has never been a case where a prisoner is released automatically after serving the minimum sentence.  The shortest period of imprisonment already served by a prisoner under this category is, as at 1 November 2004, 12 years and 2 months.  In a case where a person was sentenced when he was below the age of 18, it would mean that the prisoner would have spent over two thirds of his adult of life in prison.  If they are to ask the question “how much longer?”, they ought to be given an answer in unequivocal terms.  The possible adverse effects of a prolonged state of uncertainty are that it may defeat the prisoners’ motivation and they would gradually become institutionalized.  A fixed term would serve to remove any element of uncertainty in their minds.

32.I am indebted to Mr Vincent Wong for the applicant who has drawn my attention to the case of HKSAR v. Harman Preet, CACC190/2004，the judgment of which was handed down by the Court of Appeal yesterday.  Their Lordships examined my judgment in Lai Hung Wai, HCMP2208/2004 and Yeung Mok Yeh, HCMP2209/2004, and commented that I had fallen into error in that my approach in those cases had the effect of derogating the court’s duty to consider the merits of each case and that I should not have adopted blanket approach to impose a fixed term sentence in all cases involving prisoners who were sentenced to be detained at Her Majesty’s Pleasure.    In the same judgment, at para. 73, the Vice-President is of the view that :

“….There is, in such cases, no entitlement to know the length of the sentence and whether a life term or a fixed term is imposed under either section 67B or 67C will depend on the properly exercised discretion of the sentencer. ….”

33.I am bound by the Vice-President’s observations and in so far that each case must be considered on its own facts; that would be my guideline principle in my approach to this case.

The offence

34.This case involves the brutal stabbing of a helpless 80 years old lady who was left to bleed to her death.  The extent of the injuries suffered by the deceased was described in a post-mortem report by Senior Forensic Pathologist, Dr Yip Chu Pang, and it reads :

“	(1)	a small abrasion on the right chin;
	(2)	a minute stabwound just over 0.1 cm in diameter on the front of the left chest at the 3rd ribspace and about 5.5 cm from the midline.  It was directed backwards and slightly downwards through the ribspace onto the upper lobe of the left lung for about 3.5 cm.  The wound would not have been caused by the knife but rather was caused by something such as a long needle or safety pin (no such item was produced by the Crown);
	(3)	a shallow shelving cut wound about 1 cm long on the upper aspect of the 2nd digit of the right little finger;
	(4)	another similar wound about 1.5 cm long on the inner side of the right palm.  Both 3 & 4 were typical of defensive wounds;
	(5)	There were 5 stabwounds typical of knife wounds :
		(a) & (b)	‘Through & through’ wounds (one blow two wounds).  Through the inner aspect of the right wrist, the front wound measuring about 1.5 cm and the wound on the back about 1 cm.  The track was just underneath the skin.  No large blood vessels were injured.
		(c)	On the outer aspect of the left shoulder about 2 cm long directed to the right and slightly upwards in the muscle for about 3.5 cm.  No large blood vessels were injured.
		(d) & (e)	‘Through & through’ wounds.  Through the outer aspect of the upper part of the left arm about 6 cm apart, the wound on the back measuring about 2 cm and that at the front about 1 cm, the track penetrating the muscles of the side of the front of the left arm and severed the Cephalic Vein (one of the large vessels draining the upper arm just below the surface of the skin)”

35.The respondent has been in custody since 4 April 1982 and has been in custody for over 22 years.  He has given his consent through his counsel, Mr Haynes, should the court considers appropriate to quash the original sentence and substitute by a fixed imprisonment term.

36.The respondent had a clear record prior to the present offence.  He fled the scene of the killing but surrendered to the police on 4 April 1982.  He gave a statement under caution to the police in the presence of his father the gist of which was that he admitted to have stabbed the deceased in panic and he denied any intent to kill or to cause grievous bodily harm.  The respondent elected to give evidence at the trial and he pursued his defence along the same lines.  In returning a verdict of guilty on the count of murder, the jury must have rejected the respondent’s defence of lack of intent.  

The Reports

37.In the Correctional Services Report dated 10 December 2004, the reporting officer observed that the respondent had encountered significant adjustment problems at the initial stage of his imprisonment.  Since admission he had been warned by staff members for misdeeds on 22 occasions with the last one in 1996.  He also incurred 29 reports for breaching of prison discipline regulations with the last one in September 2004.  

38.On the positive side, since 1992 the respondent had enrolled in a number of extramural courses.  He participated in English Language and Chinese Language courses since 1993.  He passed the Pitman Qualification Examination in English (Basic) in 1997.  In 1998, he was awarded a distinction on Bookkeeping in the examination held by the London Chamber of Commerce and Industry.  In the same year, he enrolled in a course offered by the Asia International Open University of Macau and obtained a degree in Business Administration in February 2004.

39.There are, however, certain aspects in the report which are reasons for concern.  Paragraph 7 reads :

“In May 2004, LAU complained sick to the management due to headache, back pain and dizziness and he was admitted to the prison centre hospital for treatment until June 2004.  During this period, LAU requested to approach our staff of Psychological section and LAU claimed that he was under stress.  Counselling was rendered to LAU by the staff of Psychological section and he was receptive to the counselling.  However, LAU still appeared to be frustrated without apparent reason.  When asked, he failed to disclose the genuine reason bringing him into distress.  On 25.6.2004, LAU refused to proceed to the assigned workshops without any reasonable justification.  He was then disciplined for disobeying the order of the labour assignment.  Thereafter, he had been on another 3 occasions failing to proceed to his assigned workshops and he was also disciplined accordingly.  Further on 2.9.2004, he confessed to the management that he had borrowed 200 packs of cigarettes from his fellow prisoners in December 2003.  As a result, he was disciplined for receiving any articles from other prisoners without authority under Prison Rule section 61(L).  He did not disclose the details of his indebtedness.  LAU was reported to be suffering from stress and emotional fluctuation on 16.9.2004.  He was then transferred to Siu Lam Psychiatric Centre for assessment.  On 28.9.2004, when LAU was transferred back to Shek Pik Prison, he approached the management seeking protection under Prison Rule section 68(B) in order to avoid retaliation of his creditor related to his debts.  Since then, he had been staying continuously in the special unit.  He looked desperate and helpless.  Upon receiving counselling from staff member, he requested returning to normal association and alleged that he had overcome his situations on 3.12.2004. …. His institutional performance was considered to be above satisfactory in the past six years.  Presently, his overall institution performance was considered to be poor.  His present institutional performance grading is C- ….”

40.When the parties came before me on 10 November 2004, Mr Saw for the prosecution alerted the court of the possible problems confronting the respondent.  The court then adjourned the hearing to 1 December 2004.  At the adjourned hearing, the court directed that supplemental reports be prepared and they should address specifically on the respondent’s recent behavioural problems resulting in his downgrading of the overall performance grading from B+ to C-, and that the respondent’s risk profile should be reassessed in the light of the apparent problems.  The hearing was further adjourned to 25 February 2005.  

41.In the Psychiatric Report prepared by Dr S.H. Lui dated 16 November 2004, the doctor reported that he had interviewed the respondent on 5 and 9 November 2004.  He noted that the respondent was not suffering from any active mental problem.  The respondent was transferred from Shek Pik Prison to Siu Lam Psychiatric Centre for assessment in September 2004.  He had been refusing to work for some time and was observed to have experienced emotional fluctuations.  When questioned, the respondent explained that he was anxious about the outcome of the court hearing as he was under the impression that it would be his “last chance”.  He was under stress and he requested the authorities to give him solitary confinement so that he can be “quiet”.  The psychiatrist further observed that the respondent’s personality is vulnerable and is liable to dysfunction at time of stress.  The doctor recommended that in the event of the respondent being released from prison, he should be closely supervised for many years to come.

42.In his supplemental report dated 14 February 2005, Dr Lui explained the term “dysfunction”.  In the case of the respondent means that there is inability to control his emotions and behaviour which manifestations included withdrawal from work and other people, restlessness, emotional ups-and-downs and not following discipline.  The doctor concluded by observing that it is well known that such “vulnerable” persons may eventually break down in frank psychosis.

43.The psychologist, Prof. David Ho, attributed the respondent’s recent behavioural problems to the fact that the respondent had been under great stress since May 2004.  The stress was accentuated by communication problems between the respondent and the institutional staff.  The respondent, being an inarticulate person, was not particularly adapt at describing his emotions.  This in turn has manifested himself, at least in the eyes of the institution staff, as his deliberately flouting orders. 

44.When interviewed by Prof. Ho, the respondent stated that he did not mean to be oppositional when he refused to proceed to his assigned workshop as ordered.  He had no idea that his refusal would result in a serious downgrading of his overall institutional performance.  The respondent also expressed no sense of injustice or resentment and he accepted the disciplinary action willingly.  He did not feel the report was unfair to him nor did he feel that the staff officers’ actions were deliberately directed against him.

45.On the important issue of risk profile, Prof. Ho agreed that the respondent is vulnerable to stress.  However, he took the view that the assessment result indicated that the respondent is in the “low risk” category in terms of future general and violent recidivism. 

46.This “low risk” rating is also the view taken by Ms Eva Kwong, Senior Clinical Psychologist of the Correctional Services Department in her report dated 25 November 2004.  Ms Kwong also observed the respondent to be emotionally stable and mentally clear and that he came across to her as sincere and polite.  Ms Kwong also opined that the respondent’s chance for future successful reintegration is promising.  She concluded her report by observing :

“…. with his good effort on studying, self-reflection and advice seeking from staff and professionals, his insight and remorse towards past misdeeds had improved.  Present psychological and risk assessment profiles also point to a lower risk estimation of violent recidivism. ….”

47.As disclosed in the Social Welfare Report prepared by Mr Wilbert Mok, the respondent’s father and step mother passed away in 1999.  Family members visited the respondent infrequently.  It appears from the tenor of the Social Welfare Report that the respondent had gained insight to his problems and he would also be prepared to face the problems ahead if he is released.

48.The respondent is a reformed person and I am of the view that he had substantially rehabilitated himself.  A fixed term sentence is appropriate under these circumstances.

The appropriate sentence

49.In HKSAR v. Lau Kin Hang, CACC357/1997 (unreported), the Court of Appeal substituted a determined sentence of 29 years for the sentence of life imprisonment imposed by the trial judge.  The applicant in that case was 16 years of age when he killed his former girlfriend.  The applicant and the deceased had an argument over the breakup of their relationship.  The deceased was killed by heavy blows to her chest which tore her liver and damaged her pulmonary artery.  There was also evidence that she had been strangled with a coat hanger.  The Court of Appeal observed, when quashing the sentence of life imprisonment and substituted a determinate sentence of 29 years of imprisonment :

“	8.	From the evidence, it appears that the killing was in the heat of the applicant’s anger and there was little premeditation. The applicant took no weapon to commit the offence. Nevertheless, the killing was a brutal one.
	9.	The applicant is not suffering from any mental disability. The medical experts at the trial told the jury that the applicant was a normal person psychiatrically or otherwise and he would pose no danger to the society if released to the community. ….”

50.In HKSAR v. Lee Kar Yeung (D3), CACC315/1998 (unreported), the Court of Appeal declined to interfere with a sentence of 30 years’ imprisonment.  The applicant in that case was 15 years old at the time of the offence.  The victim in that case was lured to a flat and murdered in brutal circumstances and the body of the deceased was never recovered.

51.Bearing in mind the Court of Appeal’s observation in Lau Kin Hang, I am of the view that the appropriate determinate sentence for the present respondent is a term of imprisonment of 27 years.  The respondent had quitted school when he was in Form 1.  During the years of incarceration, the respondent had put in genuine efforts in educational pursuits as is evidenced by his degree in Business Administration.  He has also participated in social awareness programmes.  I take the view that his downgrade of overall institutional performance is attributable to the stress he had experienced in the lead up to the application for determination.  This behaviour is explained in the report by the Clinical Psychologist which I had referred to earlier.  This should not adversely affect the respondent’s position in the present hearing. 

52.For the satisfactory performance during the respondent’s detention, I am prepared to give him a discount of two years from the sentence of 27 years so that the resulting term is one of 25 years’ imprisonment.

53.For the reasons I have stated, I would exercise the powers vested in me pursuant to section 67C(4)(b) of the CPO and order that the sentence passed on the respondent by Commissioner Evans on 16 March 1983 be quashed.  The sentence is substituted by a sentence of 25 years’ imprisonment.

Mr D.G. Saw, SC, DDPP & Mr Vincent Wong, SGC of DPP, for HKSAR

Mr John Charles Haynes , instructed by Messrs S.H. Chan &Co., assigned by Director of Legal Aid, for the Respondent