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

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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Before: Hon Ma CJHC, Stock JA and Suffiad J in Court

Date of Hearing: 14 May 2008

Date of Judgment: 14 May 2008

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.By judgment dated 7 January 2008, we dismissed the applicant’s appeal from a judicial review.  The applicant had sought a declaration that in so far as the Long Term Prison Sentences Review Ordinance, Cap. 524 and the Criminal Procedure Ordinance, Cap. 221, failed to require the setting of a punitive term where mandatory life sentences had been imposed, they were unconstitutional.  

2.By notice of motion dated 1 February 2008, the applicant seeks leave to appeal to the Court of Final Appeal pursuant to the provisions of section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 on the basis that there was involved in the appeal a question which by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

3.The questions that have been suggested to be of great general or public importance involved in the appeal are:

(1)   Whether Articles 7, 9 and/or 14 of the International Covenant on Civil and Political Rights as applied to Hong Kong pursuant to Article 39 of the Basic Law require that a person sentenced to life imprisonment for murder be informed of the period of imprisonment that s/he must serve in order to serve the punitive term of his/her sentence;

(2)   If the answer to Question (1) above is affirmative, whether the said Articles read together with Article 80 of the Basic Law require that such a punitive term be set in court.

4.The essence of the matter is that the point has, so we found, by reasoning provided in paragraphs 12 to 14 inclusive of our judgment, effectively been determined by the judgment of the Court of Final Appeal in Lau Cheong.

5.Accordingly the motion is dismissed, with costs; the applicant’s costs to be taxed in accordance with the Legal Aid Regulations.

Mr Paul Harris, SC, instructed by Messrs Brian Kong & Co. for the Applicant

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