HKSAR v. Cheung Lai Man

CACC000533/2002

CACC 533/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 533 OF 2002

(ON APPEAL FROM HCCC NO. 24 OF 2002)

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Coram: Hon Woo JA, Cheung JA & Yeung JA in Court

Date of Hearing: 29 July 2003

Date of Judgment: 8 August 2003

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Background

1.The applicant, Cheung Lai-man pleaded guilty to 3 counts (2nd, 5th and 6th) of rape before Deputy Judge Wright in the High Court and was sentenced to 3 concurrent terms of life imprisonment. The judge also specified under section 67B(1) of the Criminal Procedure Ordinance Cap. 221(the Ordinance) a period of 20 years as the minimum term that the applicant must serve.

2.The applicant sought leave to appeal against sentence.

The Facts

3.The rape victims were all young female students aged 20 (PW1), 21 (PW2) and 12 (PW3) years respectively. They were attacked while they were on their way to school. PW2 was raped in November 1997, PW3 in November 1998 and PW1 in May 2001.

4.The applicant, masked and sometimes wearing gloves, threatened the victims with knife to injure or to kill them. After the victims were subdued, they were tied up and sometimes gagged and blindfolded. They were taken to nearby bushes where they were raped.

5.Two of the victims were forced to perform oral sex for the applicant. The applicant ejaculated inside the mouth and over the body of PW3.

6.The applicant also obtained the personal particulars and personal property of PW1 and PW2.

7.The applicant was arrested after raping PW1 and was found to be carrying a rucksack. Inside the rucksack, there were various items including a knife, two video cameras with tapes, a radio receiver, a mouth cover, a balaclava, a piece of brown adhesive tape, a lighter, a metal chain and two pieces of plastic stripes.

8.The tapes inside the video camera depicted the entire process in which PW1 was raped. Subsequent search of a safe inside the applicant's bedroom also produced 2 further video tapes which recorded the raping of PW2 and PW3.

9.The applicant admitted to have seen PW1 on one occasion before deciding to target her. He had been to the vicinity of her residence 5-6 times to familiarize himself with the daily routine of PW1 and her younger sister before preying upon PW1.

10.The applicant said the checking of the movement patterns of PW1 and her family gave him satisfaction as if he was already raping her.

11.The applicant also admitted to have set up a nylon booth overlooking the entrance to PW1's home for committing the offence. The booth was for his watching the movements of the house's inmates and for the rape to take place. The 2 video cameras were used to record the rape and the radio receiver was used to check the movement of patrolling police officers.

12.PW2 was not a selected target. According to the applicant, he first found a piece of flat grassland. He then set up a camera and placed a piece of white cloth on the ground before hiding himself in the bushes to wait for a single female.

13.PW2 was chosen simply because she happened to be at the wrong place and at the wrong time.

14.On the other hand, PW3 was also a selected target. The applicant said he went to the Shatin area to look for a target and set his eyes on PW3. He had observed PW3's movements many times before attacking her when she was on her way to school.

15.The applicant also admitted to have set up a camera to record the process before he ravaged PW3.

Medical Evidence on the Applicant

16.The applicant did not suffer any mental disorder but had serious personality problems.

17.Two government psychiatrists of Siu Lam Psychiatric Centre described their findings on the applicant as follows:

"Cheung shows traits of personality disorder, which are exemplified by his egocentricity and lack of empathy towards the victims. His obsession in deviant interests and repeated violent act disregarding feelings of others indicate dangerousness. He does not appear to suffer from any other psychiatric disorder."

"Cheung is not suffering from mental illness, but may be described as having a dissocial (psychopathic) personality marked by extreme self-indulgence and callous unconcern for the feelings of other people. Given his normal family background and upbringing, such traits or defects are seen as inborn more than a result of nurture. Psychiatric treatment is unlikely to be of help."

18.Another psychiatrist commissioned by the Director of Legal Aid also concluded that the applicant was not suffering from any formal mental illness and was capable of knowing what he was doing at the time of the offences and that it was wrong.

19.All the doctors were unanimous in their views that another reason for the applicant to commit the offences was his desire to produce videotapes for his own collection.

20.Dr. Leung, a clinical psychologist commissioned by the Director of Legal Aid, made the following findings on the applicant:

"He was fond of collecting things, and enjoyed arranging his collection orderly and systematically...Having watched many pornographic CDs, he was tempted to make his own CD collections. He started buying a video camera in 1997, and planned his action carefully. He was dissatisfied with the production, and was hooked onto producing better ones, and bought a second video camera. He did not find the process of rape ecstatic, nor find his own video enjoyable. He was neither interested, nor aroused on watching his CD. Like his habit of hoarding things, he felt under-gratified until he had possessed a complete set. He yearned for producing a good pornographic CD by himself, thinking that he would stop after it was perfected...He was inclined to be rigid, stubborn, possessive and perfectionistic."

21.Dr. Leung concluded by saying:

"With acceptance from his parents and wife subsequently, he has revived hope of starting a new life. Nevertheless, in view of his psychopathology, and danger to society, long-term individual and group psychotherapy (of over 20 sessions) in a penal institution is recommended to help him develop his coping strength and effective functioning."

Impact of the Crimes on the Victims

22.PW1 and PW2 were interviewed for the purpose of compiling a victim's impact report. PW3's family refused to allow her to be interviewed.

23.The pertinent parts of the report on PW1 identified by the judge are:

"...[the attack] occurred near her home and she had a vivid memory of it. She could vividly describe the long knife at her neck, and the noises she heard after she was blindfolded. And she remembered the physical pain she suffered in being tied up and raped... After she was rescued, she moved out [of her home] to avoid the media and seeing the crime scene again.

The intense fear of being killed, the experience of being tied up and blindfolded during the assault, the bodily harm and pain suffered, and inquiring of her personal information by the offender rendered her strong sense of helplessness and insecurity. In addition, the home and neighbourhood that were supposed to be safe and familiar to her suddenly turned to be a place without safety and she could not return...

She felt dirty...with a sense of inferiority...She was hyper vigilant and had intense fear and anxiety in staying alone and seeing male strangers on the streets.... she continued to have flashbacks.... Her fear of abduction and hyper vigilance also persisted. She would not go out alone.

Although she has her internal strength and family support to help her survive through the trauma, her avoidance coping mechanism would only prolong the aversive impact of the trauma, which if without intervention, would have affected her psychological functioning and personality in the long run. She is still exhibiting distress..."

24.The pertinent parts of the report on PW2 identified by the judge are:

"In the course of the sexual attack in question, [she] felt that her life was being seriously threatened, but the most obnoxious part of the victimization was about the invasive bodily manipulation. She also reported heightened fear when the perpetrator contacted her later.

Over time...[she] thought about the traumatic event less and less frequently...Such conscious, intentional process of cognitive and emotional avoidance may constitute a part of her psychological defenses, which she has developed as a means to manage her posttraumatic distress...But from a psychological point of view, excessive suppression of unwanted emotions may not be a healthy coping mechanism in the long run.

....her overall self-esteem was classified in the intermediate range and her self-esteem in the social domain was rated as very high. A variety of individual and situational factors may have affected her psychological adaptation process interactively.In fact, the depth of her inner turmoil is not yet fully known."

The Judge's Approach

25.Apart from the obvious hideousness of the offences and the repulsive manner in which they were committed, the judge referred to the following aggravating features:

(1) The humiliation to the victims. The judge referred to the applicant's habit of "collecting things" and the ordeal to PW1 and PW2 when they were obliged to watch the respective video to verify their identities.

(2) The impact of the offences on people connected to the victims. In particular, the judge said PW1's father would be haunted by the harrowing thought that had he arrived a little earlier, he might have been able to prevent his daughter being raped.

26.According to the clinical psychologist who interviewed PW1's mother, the impact of PW1's terrible experience on her and the family was devastating.

27.The judge remarked: "Simply reciting, or listening to, the details of your actions has three immediate consequences: firstly, it fills any right-thinking member of the society with complete revulsion; secondly, the amount of careful thought which you put into executing these offences is demonstrated by the level of planning and caution involved; thirdly, it demands condign punishment."

28.The judge concluded that the three criteria referred to in R v Hodgson [1968] 52 Cr App R 113, namely (i) the offences are in themselves grave enough to require a very long sentence; (ii) it appears from the nature of the offences or from the accused's history that he is unstable and likely to commit such further offences in the future; and (iii) if the offences are committed the consequences to others, even one other, may be specially injurious, as in the case of sexual offences or crimes of violence, were satisfied.

29.With reference to criterion (ii), having referred to R v Cheung Hing-biu [1984] HKLR 87, R v Lee Shun-chung and Others Crim App No. 359 of 1986 (unreported), R v Smith 2000 WL 823970 CA, R v Arash Ali [2001] EWCA Crim 2309 and AG's Reference No. 32 of 1996 (R v Whittaker) [1997] 1 Cr App R (S) 261, the judge said: -

"I have made reference to these decisions to show that, even absent medical opinion, the nature and multiplicity of the offences themselves may satisfy the second criterion."

30.The judge did, however, refer to the comments by the two government psychiatrists that the applicant "had a dissocial (psychopathic) personality marked by extreme self-indulgence and callous unconcern for the feelings of others...[which] were seen as inborn more than as a result of nurture" and "shows traits of personality disorder, which are exemplified by his egocentricity and lack of empathy towards the victims. His obsession in deviant interests and repeated violent acts disregarding feelings of others indicate dangerousness."

31.The judge referred to the comments of the psychologist, Dr. Leung that "at the time of the assessment, and at the times Mr. Cheung committed the index offences, he should be free from mental illness, antisocial and sadistic personality disorders. He manifested traits of Dependent Personality Disorder, and some features of a Schizoid Personality and a Compulsive Personality" but emphasized her other comments that "Nevertheless, in view of his psychopathology, and danger to society, long-term individual and group psychotherapy...in a penal institution is recommended."

32.The judge did not have any regard to the previous good character of the applicant or his pleading guilty to the charges and thus sparing the victims the need of giving evidence in the course of a trial. He sought reliance on the following passage in R v Cheung Hing-biu (supra):

"When a court comes to the conclusion that life imprisonment would be proper, factors such as pleas of guilty, co-operation with the police and remorse, if it exists, have little relevance in the sentencing process. A plea does most certainly merit a discount...but that only where the tribunal decides upon a determinate sentence in the first place."

The judge then imposed 3 concurrent terms of life imprisonment on the applicant. In fixing the minimum term under section 67B(2) of the Ordinance of 20 years, the judge said:

"I take into account in determining that period all the factors which I have traversed already. In addition, I bear in mind that it may be said on your behalf that you left your three victims alive. The quality of their lives is another matter, but at least they remain alive. The period which I fix must reflect that factor."

Grounds of Appeal

33.Mr. Wu, on behalf of the applicant, suggests that the offences were not grave enough to attract a life imprisonment when there was insufficient evidence to support the judge's finding that the applicant remains a real and continuing danger to society for an indefinite period or upon expiry of a fixed term of imprisonment.

34.Mr. Wu emphasizes that the applicant is treatable and would be benefited from a long term individual and group psychotherapy in a penal institution as recommended by Dr. Leung.

35.Mr. Wu suggests that the judge was wrong to conclude that the 3 criteria, particularly the third criterion in Hodgson (supra), are fulfilled.

36.It is also suggested that the judge should have given the applicant credits for his guilty plea and the minimum term of 20 years is in any event far too excessive.

37.Mr. Wu also complains about the following comment by the judge on his assessment of the danger the applicant posed to the public:

"If I err in this assessment, it is better that I do so to your detriment than to that of some young girl."

38.Mr. Wu suggests that any benefit of such error should be given to the applicant.

39.Mr. Luk, on behalf of the respondent, feels uncomfortable about the approach by the judge. He, however suggests that the comment by the judge is superfluous as he had stated just before the comment in question that "the applicant constitutes a real and continuing danger to the community, in particular to females in the community" and that "there is a real danger that [the applicant] will commit further offences if [he is] permitted to be at large in [his] present state".

40.We tend to agree with Mr Luk's observation.

41.In any event, both counsel agree that as the judge did not rely on any viva voce evidence to reach the conclusion he did, we are in as good, if not a better position to make the assessment on the issue of whether the applicant is likely to remain a real and continuing danger to the society for an indefinite period to justify life imprisonment.

42.It goes without saying that the offences in question are indeed most heinous and repulsive. They must be some of the worst of the kind. Not only did the applicant put the victims through the most degrading, humiliating and traumatic experience, he video recorded the entire process of his beastly acts for self-gratification, as he "likes collecting things".

43.Mr. Luk for the respondent is entirely justified in his submission that practically all the aggravating factors considered in R v Billam (1986) 82 Cr App R 347 are present. In particular, he points out that the preparations by the applicant became more elaborate one case after another and he was getting more and more daring.

44.Mr. Luk is also right in emphasizing the impact of the offences, not just on the victims, but on their immediate families as well.

45.The offences do call for penalty of the most serious nature to reflect the enormity of the applicant's crime.

46.On the other hand, an indeterminate sentence should not be easily imposed and is only justified when certain criteria are fulfilled.

47.The Court of Appeal in Billam (supra), when laying down guidelines of sentence, has the following to say at page 350:

"At the top of the scale comes the defendant who has carried out what might be described as a campaign of rape, committing the crime upon a number of different women or girls. He represented a more than ordinary danger and a sentence of fifteen years or more may be appropriate.

Where the defendant's behaviour has manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time, a life sentence will not be inappropriate."

48.Hodgson (supra) also places emphasis on the need to ascertain from "the nature of the offences or from the defendant's history that he is unstable and likely to commit such further offences in the future".

49.The judge said the nature and multiplicity of the offences themselves justified the conclusion that the applicant was unstable and likely to commit such further offences in the future.

50.The judge also referred to the opinion of the government psychiatrists that the applicant "likes collecting things"; that he "has a dissocial (psychopathic) personality marked by extreme self-indulgence and callous unconcern for the feeling of others; and that he "shows traits of personality disorder, which are exemplified by his egocentricity and lack of empathy towards his victim".

51.The judge concluded with the following remarks:

"In my judgment it is clear from both the facts themselves and the medical evidence that you constitute a real and continuing danger to the community, in particular to females in the community. I apprehend that there is a real danger that you will commit further offences if you are permitted to be at large in your present state. If I err in this assessment, it is better that I do so to your detriment than to that of some young girl."

52.The three offences were committed between November 1997 and May 2001. Without in any way trying to minimize the seriousness of what he did, it is fair to say that the applicant had not inflicted any gratuitous violence on any of the victims. There is no indication that the victims had been subjected to any necessary brutal or sadistic acts, sexual or otherwise. Despite the stabbing by PW2 on his neck, the applicant did not retaliate after he took control of the situation.

53.The judge commented about the applicant leaving the three victims alive. In fact there was no indication that their lives were at any stage at risk as such, although they had been threatened with a knife.

54.The applicant was 34 years old at the time of sentence. He is a man of previous good character.

55.The judge was of course right when he said factors such as pleas of guilty, co-operation with the police and remorse had little relevance once it was concluded that life imprisonment would be proper. [relying on R v Cheung Hing-biu (supra)].

56.But before concluding that life imprisonment is proper, the court should take into consideration the fact that an accused has a clear record.

57.Previous convictions in the normal course of events can have a deterrence effect. If an accused, despite having been convicted and sentenced on precious occasions, continues to commit offence, he is more likely than otherwise to commit further offences in the future. The danger to the society is thus greater.

58.Hodgson (supra) concerns an accused who had been convicted twice of various assaults on women, one for wounding with intent to cause grievous bodily harm and the other for assault occasioning actual bodily harm. Three sentences of life imprisonment in respect of two acts of rape and one of buggery on women late at night in public places were considered justified.

59.In the judgment of the Court of Appeal (Criminal Division), reference was made to what transpired when the accused's previous record was disclosed:

"The trial judge's reasons for passing this sentence can be gathered from the transcript of the proceedings. On being given the appellant's previous record he put this question to the police officer: 'It seems he specializes in attacks on women and girls' to which the officer answered: 'It would appear so.' In passing sentence he said: 'It is difficult to know, having heard the evidence, whether you are to be regarded as a man or a monster. It is quite clear that the public, in particular women and girls, must be protected against you."

60.It is clear the court in Hodgson (supra) had place reliance on the previous conviction of the accused to justify life imprisonment.

61.In Attorney-General's Reference No. 32 of 1996, R v Whittaker [1997] 1 Cr App R (S) 261, a sentence of life imprisonment was considered appropriate for an offence of causing grievous bodily harm with intent. The peculiar facts of the case are reflected in the head-note:

"The offender, aged 37, was convicted of causing grievous bodily harm with intent (having been acquitted of attempted murder). The offender had been convicted of murder and sentenced to life imprisonment in 1978 at the age of 19. He had kicked a man and jumped on his face following a disagreement after both had been drinking. In 1990, the offender was placed in pre-release hostel but was returned to custody after a month. In 1994 he was again recommended for release and allowed three days home leave. The day after leaving prison on leave he met a young woman at a nightclub, and followed her home when she left. The offender got ahead of her, jumped out from a hedge, told her he was going to kill her and punched her to the ground. He then got astride her and squeezed her neck; her father heard her cries and shouted that he was coming to help her, and the offender fled."

62.The background in Whittaker (supra), including the offender's previous conviction, clearly indicates that the offender is likely to represent a serious danger to the public for an indeterminate time and hence life imprisonment was considered justified.

63.We recognize that in R v Cheung Hing-biu (supra), the criminal record of the defendant showing minor offences in three years was ignored for the purpose of sentence and life imprisonment was considered justified. But it was a most grave case involving 10 rapes, 11 indecent assaults and 43 robberies over a period of about 2 years.

64.Emphasis was put on the fact that "Each of the 10 rapes was committed together with a robbery as were 10 of the indecent assaults, that leaves one indecent assault unconnected with robbery and 21 robberies without a sexual element".

65."The multiplicity of the offences" referred to in Cheung Hing-biu (supra) is not 3 charges of rape over a period of about 4 years, but over 60 offences in a period of about 2 years.

66.With respect to the judge, we do not agree with his conclusion "that the nature and multiplicity of the offences themselves satisfied the second criterion".

67.It is of course not necessary for all the three criteria laid down in Hodgson to be present before an indeterminate sentence could be imposed. (see R v Cheung Hing-biu (supra) and R v Lee Shun Chung & ORS [1987] 1 HKC 128).

68.There were also cases where life imprisonment was imposed on first offenders and when the number of offences committed by the offenders was not too substantial. But those cases were cases of extreme gravity.

69.In R v Kevin Nash Cobb [2002] 1 Cr App R (S) 67, the appellant (a person of previous good character) was convicted of one count of manslaughter, two counts of rape and four counts of administering a stupefying drug.

70.The appellant was employed as a nurse in a hospital. He administered a stupefying drug to a nurse, who died as a result. Three years later, on three occasions he administered the same drug to female patients which had the effect of making them lose consciousness. In two cases, the appellant had sexual intercourse with the patient while she was unconscious.

71.His sentence of life imprisonment was upheld.

72.In R v So Ching-kwan [1993] 1 HKCLR 156, the appellant was an illegal immigrant without any precious conviction in Hong Kong. He was in fact brought into Hong Kong to commit offences. He was convicted of 6 offences including robbery, possession of a firearm, false imprisonment, shooting with intent, attempting to discharge a loaded gun and manslaughter.

73.The appellant robbed a jewellery shop with the threat of a loaded gun. He fired one shot in a crowded MTR station. He took a young girl as a hostage and threatened to kill her with what he must have thought was a loaded gun. He tried to shoot at police officers and only failed to fire again because his gun had jammed.

74.His actions resulted in the death of a perfectly innocent member of the public. The charge of murder resulted in a manslaughter conviction and the Court of Appeal upheld the sentence of life imprisonment.

75.In R v Lee Shun Chung [1987] 1 HKC 128, the appellant was convicted of 7 counts of robbery, 7 counts of rape and one count of indecent assault. He was sentenced to life imprisonment on each count of robbery and rape, and to 5 years' imprisonment for indecent assault. The appellant only had convictions for minor offences. His appeal against the sentence of life imprisonment was also dismissed.

76.The facts of the case again demonstrate that it was a case of exceptional gravity. The appellant, with others, entered private premises in the small hours of the morning. The occupants were threatened with choppers and knives. They were tied up with coat hangers and blindfolded. The premises were then ransacked and, money and valuables were stolen.

77.Some of the occupants could have suffered death from suffocation. Many of them were severely beaten up and sustained injuries. In practically all the cases where there were women or young girls, they were repeatedly raped by several men, one after another, or indecently assaulted.

78.The victims suffered multiple bruises and abrasions. One girl had ligature marks while the breasts of another bore the marks of burns from a cigarette.

79.Without in any way trying to minimize the gravity of what the applicant in the case before us did, what he did was not as bad as those in Cobb (supra), So Ching-kwan (supra) or Lee Shun Chung (supra).

80.We also recognize that gravity of the offence and injuries to victims may not always be the most important factors in deciding if life imprisonment should be imposed. An indeterminate sentence may well be appropriate for a less serious offence if there is evidence that the defendant represents a serious danger to the public and that his condition is not treatable and is likely to persist for an indefinite period.

81.This point was made clear in AG's Reference 34 of 1992 R v Oxford (1994) Cr App R (S) 167.

82.The facts of the case as summarized in the head notes are as follows:

"The offender was convicted of wounding with intent to cause grievous bodily harm and possessing an offensive weapon. The offender came upon an 18-year-old girl whose car had broken down in the early evening. The appellant held her from behind and stabbed her several times in the right shoulder with a carving knife. The victim suffered a one inch gash which required stitching. Eighteen months later the appellant was found in a built-up area in the early hours of the morning, in possession of a carving knife and dagger. The offender had no previous convictions. Medical reports before the Crown Court showed that the appellant suffered from a psychopathic disorder and was highly dangerous, particularly to women. He had been admitted to a special hospital under an interim hospital order, but by the time that he came to be sentenced (following an application to change his plea) the medical witnesses considered that he was untreatable, though highly dangerous."

83.The Court of Appeal imposed an indeterminate sentence, having regard to the need to protect the public.

84.Lord Taylor CJ said at p. 171:

"What is of prime importance here is the unanimous opinion of the doctors that this man represents a high risk to women and one which is not at the moment treatable and one which therefore is likely to persist for an indefinite period."

85.We are fully aware of the comments by the government psychiatrists on the applicant which need not be repeated. The two government psychiatrists said the applicant did not suffer any psychiatric problem. They did not say that the psychological condition of the applicant was untreatable.

86.The psychologist, Dr. Leung certainly took the view that long-term individual and group psychotherapy (of over 20 sessions) in a penal institution would be helpful to the applicant.

87.We are not persuaded that the applicant's conditions are such that he is likely to represent such a serious danger to the public for an indeterminate time in the future to justify the sentence of life imprisonment, particularly when he would no doubt be subjected to a long detention in any event before he would be released back to society.

88.Women and girls of course should and need to be protected, but life imprisonment should only be imposed in the most exceptional circumstances when it is clear that in the interest of the public, a defendant must be kept in prison until those who are observing him consider that he is fit to be released (see R v Wilkinson & Others (1983) 5 Cr App R (S) 105).

89.In R v Hercules (1980) 2 Cr App R (S) 156, Lawton LJ made the following observation at p. 158:

"The appellant is now 40 years of age and must rapidly be approaching an age when, as a matter of ordinary human experience, aggressive tendencies die down. So long as he has those aggressive tendencies he is a danger to the public. He has now been in prison for a fairly long time. Time itself may cure his aggressiveness.

Life imprisonment is a very severe sentence and should be avoided whenever possible. A man who is sentenced to life imprisonment does not know when he will be released; the future for him is uncertain."

90.We have carefully considered all relevant matters pertaining to the question of sentence for the offences committed by the applicant. The crimes committed by him must be met with condign punishment to reflect the abhorrence of the public towards such crimes.

91.Obviously the applicant must go to prison for a long time, but we are not persuaded that life imprisonment is right in principle.

92.We are of the view that for each of the three counts of rape (2nd, 5th, and 6th), a starting point of 18 years should be adopted. There should be a reduction of 1/3 to reflect the guilt plea. For each of the three counts of rape, the applicant is therefore sentenced to 12 years' imprisonment. On totality principle, we order 6 years on each of the 5th and 6th count to run consecutively to the 12 years on the 2nd count. The total sentence imposed on the applicant is one of 24 years' imprisonment.

93.We grant leave to the applicant to appeal against sentence and treat the application as the appeal proper. The appeal is allowed to the extent indicated.

The Minimum Term Under The Ordinance

94.Having quashed the sentence of life imprisonment, the minimum term under the Ordinance is no longer relevant. Due to the importance of the issue and in deference to counsel's arguments, we feel obliged to deal with it as well.

95.A life imprisonment with a minimum term under s.67B of the Ordinance is not subject to any remission granted under Rule 69 of the Prison Rules (Cap.234).

96.It is also not liable to be reviewed by the Long-term Prison Sentences Review Board until 6 months before the minimum term is due to end. Section 11(5) of the Long-term Prison Sentences Review Ordinance Cap. 524.

97.A minimum term is therefore a minimum period of sentence to be served as opposed to the period subject to any deductions.

98.The purpose of a discretionary life sentence with a minimum term is twofold. The minimum term is to serve the purpose of retribution and deterrence, to reflect the culpability of the accused. The life sentence is with the additional aim of protecting the public. Therefore in setting the minimum term, the court must have regard to the usual mitigating factors. The court should also take into account the possible remission for industry and good conduct.

99.Lord Bingham CJ said in AG's Reference No. 32 of 1996 (R v Whittaker) (supra) at p. 266:

"We fix the appropriate period to be served for the purpose of retribution and deterrence at seven years, bearing in mind that that is a period to be served as opposed to the period subject to deductions which the learned judge imposed on the offender."

100.The applicant pleaded guilty to the charges and in the normal course of event, he should be entitled to a one-third discount. If the term of imprisonment imposed on the applicant is not a minimum term, he also has the opportunity to gain a maximum of one-third discount for industry and good conduct under Rule 69 of the Prison Rules.

101.The minimum term of 20 years imposed on the applicant, could therefore mean an effective starting point of up to 45 years, taking the deductions into account.

102.Mr. Luk argues that in considering the proper minimum term, the court should ignore the possible remission for industry and good conduct as the sentencing judge cannot be expected to have regard to future events. We do not agree.

103.A minimum term is just the minimum period of detention. It does not mean the accused will be released at the expiry of the minimum term even if he no longer poses any danger to society.

104.In deciding if an accused should be released after the expiry of the minimum term, the relevant authorities are entitled to have regard to the fact that in setting the minimum term, the sentencing judge already has regard to the possible remission for industry and good conduct.

105.As we have already quashed the sentence of life imprisonment, there is no need to specify the minimum term. We wish to say, however that the minimum term imposed by the judge is in any event excessive.

Representation:

Mr Arthur Y S Luk, SC(DDPP) & Ms Chan Shook-man, Alice, SGC of the Department of Justice for the Respondent

Mr Paul K N Wu instructed by Messrs Hau, Lau, Li & Yeung assigned by the Director of Legal Aid for the Applicant.