SECRETARY FOR JUSTICE v. CHAN WAI LUN

HCMP2256/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.2256 OF 2004

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J U D G M E N T

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Background

1. This is an application by the Secretary for Justice pursuant to section 67C(1) of the Criminal Procedure Ordinance, Cap.221 (“the Ordinance”), for a determination under section 67C(3) of a minimum term for the sentence of the respondent Chan Wai Lun imposed by the High Court in HCCC84/1992.

2. On 6 November 1992, the respondent pleaded guilty to manslaughter before Ryan J in satisfaction of one count of murder.  The plea was tendered and accepted on the basis of diminished responsibility and the respondent was sentenced to life imprisonment.  He did not appeal against his sentence.

3. In 1996 section 67B of the Ordinance was enacted.  Under that section a sentencer who imposed a discretionary life term was required to at the same time of the sentence state a minimum term of imprisonment that the prisoner must serve.  This enactment, however, did not affect those, the respondent included, who were sentenced to life imprisonment for conviction of offences other than murder.

4. Then in 1997 the former section 67C of the Ordinance was enacted.  Under that section the Chief Executive was empowered to determine, on the recommendation by the Chief Justice, the minimum term to be served by a prisoner who was then serving a discretionary life sentence.  In 1998 the Chief Executive duly made a determination pursuant to that section of the Ordinance.

5. In Yau Kwong Man & Others v. Secretary for Security [2002] 3 HKC 457, Hartmann J held that the powers vested in the Chief Executive under section 67C of the Ordinance were judicial powers and hence unconstitutional when they were exercised by the executive.  The result of the decision was such that the respondent, together with a number of other prisoners who were serving a discretionary life term imposed before 1996, were left in a position where they did not have a lawfully determined minimum term.

6. The legislature acted promptly to remedy the situation.  The Criminal Procedure (Amendment) Ordinance came into operation on 15 July 2004.  The former sections 67C to 67E of the Ordinance were repealed.  The new sections 67C(1) and (3) provide :

“(1)	As soon as practicable after the commencement of this section and in any event within 6 months after such commencement, the Secretary for Justice must, in respect of each prescribed prisoner, apply to the court for a determination by a judge under this section.
(2)	…
(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.”

7. A judge of the Court of First Instance is empowered under the new legislation to determine the minimum term to be served by prescribed prisoners who were sentenced to a discretionary life term.

8. The object of the present exercise is for this court to determine the minimum term which the respondent must serve for the offence of manslaughter for which he was sentenced to life imprisonment in 1992.

9. The respondent was arrested on 13 September 1991.  At the time of this hearing he has been in custody for 13 years.

10. The respondent has a total of eight previous convictions starting in 1973.  His last conviction prior to the present offence was in May 985.  In HCCC288 of 1984 the respondent was charged with the murder of a female in Victoria Park, Causeway Bay, on 17 August 1984.  He pleaded not guilty to the charge and was tried before Barnes J sitting with a jury.  The jury returned a verdict of manslaughter and the respondent was sentenced to 10 years’ imprisonment.  He was discharged on 28 June 1991.  The present offence was committed just 10 weeks after his release from prison.

11. In a previous psychiatric report dated 21 May 1985 which was submitted to Barnes J at the time of the respondent’s sentence for case HCCC288/1984, Dr T.K. Cheung, the visiting psychiatrist of Siu Lam Psychiatric Centre noted that the respondent “was not labouring under the influence of any mental imbalance at the time of the offence” and “No psychiatric treatment is required as he is free from any mental disorder.”

The offence

12. The circumstances of the present offence is outlined in the police report dated 14 October 1991.  The relevant paragraphs read :

“14. Around 06:30 hours on 10.9.91, Deceased’s mother (YUEN Tai-tai age 53) whist at home, received a phone call from the deceased (judging from the voice).  The latter disclosed that she was going to USA/Canada very soon with a few female colleagues to work in a restaurant there.  Deceased also mentioned that the Hi-fi equipment and the furniture at her residence would be removed back home.  The conversation lasted not long and deceased shortly afterwards hung up saying that she was going to the Airport.  Deceased’s mother found that strange and related this to her son (Cheung Kin-hong aged 31).

15.  The phone call was also made known to deceased’s father (CHEUNG Ping-kwan aged 54),  Finding it strange, he paged deceased sometime after 1900 hours on the same day (10.9.91).  About 2030 hours, a male answered the paging call, who told the deceased’s father that her daughter had gone to USA/Canada.  Deceased’s brother (CHEUNG Kin-hong) then took over the phone from his father and talked to the male calling himself Mr CHAN.  He latter said he would deliver back the deceased’s furniture sometime in the coming Thursday afternoon (12.9.91).  The conversation then ended.

16.  Around 2000 hours and 2130 hours on 11.9.91 respectively, CHAN rang up Kin-hong and arranged to meet him at the Hang Lok Cinema in Sheung Shui at 2300 hours on the same night.  Around 2310 hours, CHAN (defendant) met Kin-hong at the Cinema.  They then proceeded to a bar nearby to have a chat.

17.  At the bar, defendant called himself CHAN Wai-lun; he mentioned that the deceased had been assaulted by a boyfriend and had gone to USA/Canada to seek medical treatment.  Defendant also disclosed that he would give HK$1 million on behalf of the deceased to her mother for her to buy a flat, another HK$500,000 to deceased’s two younger sisters for them to operate a business.  HK$500,000 was already given to deceased as the medical expenses by the defendant, according the latter.  Deceased (sic) also mentioned that he borrowed the above amount from his ‘big brother’.  The conversation lasted until 0200 hours on 12.9.91 and before leaving, defendant arranged to meet Kin-hong at 1500 hours on 12.9.91 at the Hang Lok Cinema at Sheung Shui again.  Defendant also borrowed $200 from Kin-hong.  They then parted.

18.  Perturbed by this strange meeting and the earlier phone call from the deceased, Kin-hong decided to go with the deceased’s boyfriend (CHEUNG Lung-wing) and the latter’s elder brother (CHEUNG Leung-wu, aged 41) to deceased’s residence to check everything out.

19.  Around 0530 hours on 12.9.91, the three went up to deceased’s flat at Tung On Street.  They looked into the premises through a damaged doorlock and saw a small table placed across the bedroom door.  An incense stand was on the table.  Finding the lay-out suspicious, they forced open the wooden door, the metal grille having been unlocked when they arrived.

20.  In one of the bedrooms, which was locked, they found the deceased fully clothed, lying face down on the bed.  She had been bound with strips of cloth, her head covered with a pillow-case.  A length of cloth was also tied around the neck of the deceased.  The body was partially covered with a quilt.

21.  A report was made to the police.”

13. The post-mortem report by the forensic pathologist concludes that the cause of death was mechanical asphyxia.  The respondent was arrested on 13 September 1991 and gave a number of statements under caution.  He told the police that he was contracted to kill the deceased, a female of 24 years, by persons who were known to him as Ah Chung, Kam Mo, and Ah Suet.  For his part, he would be given a reward of $200,000.  The respondent then went on to give an elaborate and detailed but at the same time highly improbable account as to how he killed the deceased.

14. Acting on the contents of the respondent’s cautioned interviews, the police managed to interview the three persons referred to earlier but subsequent investigation revealed that they were not involved in any plot to kill the deceased.

The reports

15. No doubt Ryan J was concerned with the mental state of the respondent.  The judge had the benefit of the reports by Dr Henry Yuen and Dr Peter Yu before him at the time of the sentence.

16. In Dr Yu’s report dated 20 August 1992, he is of the view that the respondent suffered from “antisocial personality disorder” :

“Chan’s behaviour also mimicked the classical description of a psychopath.  He was a social misfit who from an early age proved a problem to himself & to society.  He formed quick social relationships but was unable to maintain them.  He lacked the capacity to feel with others & was devoid of affection & callous.  Lacking persistence of effort he had a very poor work record.  He’s intolerant of discipline & of the legal & social restrictions of everyday life.  He was unable to profit from experience or punishment.  Thus, his conduct appeared inexplicable & self-destructive.  He showed a lack of judgment & foresight in his criminal behaviour as well as in his daily life.  His repeated convictions are one of the manifestations of his lawlessness.  He told the most extravagant & improbable tales.  He continued his attempts at deception, despite clear evidence of his falsehood.  This flagrant disregard for truth was particularly impressive.

Chan’s crimes of violence differ in character from assaults by normal men.  He committed his homicides when a normal man would foresee inevitable detection, & against victims (in his case, girlfriends) for whom a normal man would feel too much pity or affection.  The offence itself was so repulsive that a reasonable man would find it hard to imagine a mentally normal person committing it without having it one his conscious.

Mental Capacity at the Time of the Offence

Chan’s state of mind was so different from that of an ordinary person that the reasonable man would find it abnormal.  His mind was so abnormal as to severely impaired his self-control of aggressive acts.  Chan was suffering from such abnormality of mind as substantially impaired his mental responsibility for the killing.

…

Treatment Recommendation

Mental hospitals do not benefit him.  He would be a great disrupting influence in a psychiatric ward.

Prognosis

The prognosis was extremely poor.  He is not going to learn from experience & is going to re-offend.” (emphasis added)

17. The Government psychiatrist Dr Yuen states in his report dated 30 October 1992 that the respondent is “a very manipulative person, egocentric and prone to use violence.  I would regard him as an extremely dangerous person”.  He also states :

“His personality defect is not amenable to treatment.  It is also unlikely that he could learn from experience.  In order to protect the public, he should be incarcerated for a long period of time.

…

I agree with most of Dr Yu’s opinion.  My main concern is that this defendant is a very dangerous person and should be incarcerated for a very long period of time.”

And in his second report dated 3 November 1992 :

“I agree with the defence psychiatrist Dr Peter Yu’s opinion that this defendant was suffering form a severe abnormality of mind at the time of the offence that could substantially impair he criminal responsibility for what he had done.  He in fact has been suffering from psychopathic disorder since adolescence and had repeatedly shown himself to be abnormally aggressive and seriously irresponsible.

The plea of diminished responsibility is applicable in this case.”  (emphasis added)

18. Despite requests by the applicant, the respondent refused to submit himself for examination by the government psychologist and the psychiatric services personnel.  There is therefore, no up-to-date report on the condition of the respondent before this court.  The only reports available to this court are those prepared for the Long Term Prison Sentences Review Board in early 2004.  In the Correctional Services Report dated 23 March 2004, the Senior Superintendent of the Correctional Services Department reports that the respondent maintained an anti-authority attitude.  He showed no respect towards staff members and the prison rules.  Since his imprisonment he had incurred some 50 disciplinary reports.  He did not take any positive steps or exert genuine effort to correct his criminal behaviour.  No motivation for the respondent to improve himself was noted.  His overall institutional performance was extremely poor and was given a performance grading of C--.

19. In the latest psychological report prepared by Mr Francis Butt, the clinical psychologist of the Correctional Services Department, the attitude of the respondent was described as

“Even when the benefits from he remains the interview and its relationship with the present report were explained to him, he adamantly declined the offer without hesitation.  Given the fact that CHAN’s continuous treatment readiness is slow, it is doubtful that his risk for recidivism has reduced.”

20. The psychiatric report of the condition of the respondent is even less promising.  Dr Lui Shing Heung, the visiting psychiatrist of the Siu Lam Psychiatric Centre, reports :

“      I have examined CHAN for the Board yearly since 2000.

2.    I last interviewed him on 11 March 2004 and he was as petulant as six months ago.

3.    I have also perused Chan’s penal record and the Senior Superintendent’s and Clinical Psychologist’s reports.  My opinion is that there has been no improvement, nor any motivation to do better, in this man of psychopathic disorder.”

Meaning of “minimum term”

21. This court is required to determine a minimum term for which the respondent must serve for the offence of manslaughter on an application by the Secretary for Justice.  The expression “minimum term” is not defined in the Ordinance but defined in section 4 of the Long Term Prison Sentences Review Ordinance, Cap.524 as :

“in relation to a sentence, means a minimum term of imprisonment specified or determined under 67B or 67C of the Criminal Procedure Ordinance.”

This definition offers very little by way of explanation as to the meaning of the words.  The term however, received judicial consideration in HKSAR v. Hui Chi Wai (No.2) [2003] 2 HKC 582 at 591B where Stock JA said :

“… [A minimum term] is not designed to provide a sentence of imprisonment in lieu, as it were, of a life term.  It is designed to draw from the court a minimum term of years which the convicted person must actually serve before release, remembering however, and this is an important caveat, that it is inherent in the phrase ‘minimum term’ that the court does not say that that is the stage at which the convicted individual is to be, or even should be, released.  Those who are entrusted with the function of monitoring prisoners serving indeterminate sentences, or long term determinate sentences, and with making recommendations, where appropriate, for release or for the conversion of indeterminate terms to determinate ones, may very well in individual cases decide against the prisoner’s release at the end of the minimum term and, indeed, may decide that release is not permissible for some considerable time beyond that date, or indeed at all.”

22. The term was also considered by Hartmann J in Yau Kwong Man and Ors v. Secretary for Justice [2002] 3 HKC 457.  Having reviewed the English practice the judge observed :

“Under the legislation, indeterminate sentences are now split into two periods : the initial minimum period to reflect retribution and deterrence and thereafter the remainder of the sentence in which rehabilitation is demonstrated.  There is therefore a balance achieved … between the punitive demands of the indeterminate sentence and the welfare of the offender.” (page 489 D-E)

23. In HKSAR v. Cheung Lai Man [2004] 2 HKLRD 475 at 488, Yeung JA said :

“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.”

24. It could be distilled from the above passages that the “minimum term” is the prison term imposed on the prisoner to reflect the gravity of the offences he committed and to reflect retribution and deterrence.  It does not follow, nor is it specified anywhere under the legislative provisions that the prisoner would be released after having served the minimum term.  One needs to look at the wider legislative scheme as to what would happen to a prisoner at the expiration of the minimum term.

The Long Term Prison Sentences Review Board

25. The Long Term Prison Sentences Review Ordinance, Cap.524 confers wide powers on the Long Term Prison Sentences Review Board (“the Board”), a body appointed by the Chief Executive.  The Board is empowered to conduct reviews of prisoners serving indeterminate and long-term sentences.  Section 12(2) of that ordinance expressly provides :

“(2) On reviewing the sentence of a prisoner, the Board is not authorized to order the early release of a prisoner before any minimum term applicable to the prisoner has been served.”

26. For those prisoners who had already served the minimum term, the Board will consider at regular intervals and make recommendation to the Chief Executive as to how best to deal with the prisoner.  Such recommendations may include substituting a determinate sentence or releasing the prisoners in appropriate cases.  The effect of the present legislative scheme is that where a sentencing judge saw fit to impose a discretionary life sentence, he is required, under section 67B of the Ordinance, to recommend a minimum term for which the prisoner must serve.  The length of the minimum term is determined by reference to the gravity of the offences and with appropriate consideration given to the factors of deterrence and retribution.  That being the case the judge hearing an application under section 67C, in my view, should place himself into the position of the original sentencing judge and recommend a minimum term based on similar considerations.

The court’s approach

27. A considerable time might have elapsed between the original sentence and the application under section 67C.  There might have been significant developments since the respondent’s incarceration so that section 67C(5)(a) provides 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.”

By virtue of the above provision, the judge making the determination may take into account any material which have become available to him since the original sentence was passed.  The relevant material must include Correctional Services reports, psychological and psychiatric reports and submissions by the respondent himself.  The test is one of relevance to the determination.  The categories of relevant materials are not closed and would be peculiar to each respondent.

28. The judge in the present exercise is however expressly precluded from taking into account the previous recommendation or the previous determination by the Chief Executive and the Chief Justice (section 67C(5)(b)).  However, in cases where there had been an appeal against the original sentence, this court is bound by the judgment of the Court of Appeal.  Where the Court of Appeal had expressed a view or made observations as to what the minimum time to be served by the prisoner should be, the court should give regard to those views and observations.

The appropriate “minimum term”

29. If the respondent is sentenced today for the manslaughter offence, taking into consideration the circumstances of the case and the respondent’s plea to manslaughter, I am of the view that the appropriate sentence would be a term of 25 years’ imprisonment.  By virtue that a prisoner is entitled to a remission of up to one-third of the total actual prison term for his industry and good conduct pursuant to rule 69(1) of the Prison Rules of the Prison Ordinance, Cap.234, the nett term to be served by the prisoner after the one-third remission would be a period of 16 years’ imprisonment.

30. For the reasons stated above, I determine the minimum prison term the respondent must serve for the manslaughter offence to be 16 years.