Tong Yu Lam v. The Long-term Prison Sentences Review Board

cacv 203/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 203 of 2006

(on appeal from hcal NO. 18 of 2005)

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BETWEEN

Before: Hon Stock JA in Chambers

Date of Hearing: 22 June 2007

Date of Ruling: 22 June 2007

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R U L I N G

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Hon Stock JA:

1.For the benefit, one hopes, of the court destined to hear the substantive appeal, I shall deliver a brief ruling in relation to the application now before me.

2.This appeal came before the Court of Appeal on 23 January this year but the court was concerned about the basis upon which the only respondent to the appeal, and to the original notice of application for leave and notice of motion, namely the Long-Term Prison Sentences Review Board was under attack.  The case at first instance had proceeded on an assumption that the Board was constituted as a court for the purpose of its review function and the question raised then was whether, as such, it was obliged to set a punitive element to the indeterminate sentence being served by the applicant.  That assumption as to its curial function was demonstrated to be erroneous by reason of the decision in the Stock Exchange of Hong Kong v New World Television [2006] 2 HKLRD 518.  Whilst the applicant accepted that by reason of the Court of Final Appeal’s decision in another case Lau Cheong v HKSAR [2002] 3 HKC 146, mandatory life imprisonment was a lawful and constitutional sentence he nonetheless wished to pursue the contention that statutory provisions that required the setting of a minimum term in the case of discretionary life sentences and in the case of those defined as ‘prescribed prisoners’ in the Criminal Procedure Ordinance, Cap. 221 were unconstitutional in that they omitted to make similar provision for adults sentenced to mandatory life imprisonment, even though in relation to this particular point the Board was not itself the appropriate respondent.  The hearing had to be adjourned to enable counsel to consider how best to proceed.

3.That has resulted in the present summons by which the applicant seeks to join the Secretary for Justice as the second respondent to the appeal; for leave to re-amend the notice of application for leave to apply for judicial review; for leave to re-amend the notice of motion; for leave to amend the notice of appeal; and for an order dispensing with service of the re-amended notices and the amended notice.

4.The argument however remains, in essence, much the same as advanced before the Court of First Instance save that it is no longer contended that it was for the Board to determine a punitive term or element.  The question has been raised in written submissions whether one course might be to proceed afresh in the Court of First Instance but, as Mr Coleman realistically concedes, the crux of the constitutional challenge, as it is now proposed to frame it, was canvassed in the court below and the points now raised can adequately and appropriately be dealt with by the joinder of the Secretary for Justice as a party to the appeal, and he rightly points out that this course is the more cost and time efficient.  In effect the proposed amendments are not opposed.  A further question that has caused some difficulty is whether there is any point in pursuing this application or appeal against the Board since the Board has now conducted a fresh review in 2006 but in this regard Mr Harris contends that there are still points of significance relating to the 2004 decision that have practical consequence.

5.The case has become somewhat messy and cases that are messy at an early stage tend to become messier as time goes on.  Be that as it may, I think that the simplest route is to permit the joinder of the Secretary for Justice and the proposed amendments and re-amendments.  The applications to make the proposed amendments and re-amendments and to permit the joinder of the Secretary for Justice and to dispense with service will be granted.

Mr Russell Coleman, SC, instructed by Messrs Simmons & Simmons for the Respondent