Kwan Wing Kei v. HKSAR

FAMC No. 91 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 91 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 57 OF 2005)

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Between:

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 2 March 2006

Date of Determination: 2 March 2006

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.On 4 July 1991, when he was under the age of 18, this applicant was convicted of murder.  Passing the sentence then prescribed by law, Gall J ordered that the applicant be detained pending Her Majesty’s pleasure. 

2.Time passed and the law changed.  On 5 November 2004 Pang J made a determination under s.67C of the Criminal Procedure Ordinance, Cap. 221, in respect of the applicant who was then being detained at Executive discretion.  By that determination the applicant’s indeterminate sentence was replaced by a sentence of 27 years’ imprisonment.  The Court of Appeal (Ma CJHC, Woo VP and Stock JA) affirmed that sentence of 27 years’ imprisonment and refused to certify the involvement of any point of law of great and general importance. 

3.Now the applicant is before us asking us to certify the involvement of such a point and grant him leave to appeal to the Court of Final Appeal in order to pursue that point and also to argue that the imposition on him of a sentence of 27 years’ imprisonment constitutes a substantial and grave injustice. 

4.In terms of rehabilitation the applicant appears to have made considerable progress by the time when he was dealt with under s.67C.  So much so, it was and is argued on his behalf, that the appropriate s.67C determination to be made in respect of him is one resulting in his immediate release.  Mr Clive Grossman SC for the applicant disavowed any argument to the effect that a judge making a s.67C determination is to act as if he were performing the function of the Long-term Prison Sentences Review Board.  Nevertheless, we would observe that whether or not the argument for immediate release would prevail if a s.67C judge were to act as if he were performing the Board’s function, it certainly could not prevail unless he acted in that way. 

5.A s.67C judge’s function is very different from that of the Board.  In our view, it is clear beyond reasonable argument to the contrary that a s.67C judge is not to act as if he were performing the Board’s function.  We decline to certify any point of law.  As to the question of substantial and grave injustice, we see no reasonable basis for contending that Pang J had given insufficient weight to any of the material submitted to him which is favourable to the applicant.  In result leave to appeal to the Court of Final Appeal is refused. 

Mr Clive Grossman SC (instructed by Messrs Reimer & Partners and assigned by the Legal Aid Department) for the applicant

Mr D G Saw SC and Mr Vincent Wong (of the Department of Justice) for the respondent