SECRETARY FOR JUSTICE v. CHEUNG YAU HANG

HCMP2184/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2184 OF 2004

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J U D G M E N T

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1. This is an application by the Secretary for Justice pursuant to section 67C(1) of the Criminal Procedure Ordinance, Cap.221 (“CPO”) for a determination under section 67C(3) and (4) of the CPO.

Background

2. The respondent Cheung Yau Hang belongs to a class of prisoners who were convicted of the offence of murder at the time when they were below the age of 18.  The respondent was born on 2 December 1968.  He was tried in the High Court before O’Connor J together with three co-accused on two counts of murder.  On 20 January 1987 the respondent was convicted on both counts and was sentenced to be detained until Her Majesty’s Pleasure be known. 

3. The respondent was one of the five persons indicted together for what is known as the “Braemar Hill Murders”.  The offences took place on 20 April 1985 where two teenagers were murdered under the most atrocious of circumstances.  One of the deceased, a girl aged 18, was raped before she was beaten to death.  The facts of this case serve as a curt reminder to all of us that those who murdered the two gifted youngsters represent the darkest side of human behaviour.  It is not my intention to go through the circumstances under which the deceased met their deaths as any such account would serve no useful purpose except to re-open already faded chapters in the lives of those who cared about the victims.

4. The respondent was arrested on 28 November 1985 and he was sentenced on 20 January 1987.  

5. The respondent and each of the accused applied for leave to appeal against their convictions.  Their applications were dismissed by the Court of Appeal in March 1988.  The respondent has been in custody for 19 years.

6. In 1993, section 70 of the CPO was repealed.  Sentences for which a prisoner was to be detained at Her Majesty’s Pleasure were no longer given.  Subsequent to the enactment, all persons who were convicted of murder, regardless of the age, were given mandatory life sentences. 

7. In 1996, section 2 of the Offence Against the Person Ordinance (“OAPO”), Cap.212 was amended and section 67B of the CPO enacted.  The amendments to section 2 gave to the sentencing judge the discretion to impose on a person convicted of Murder who was under the age of 18 either a life term or a fixed term.  The contemporaneous enactment of section 67B of the CPO required that a sentencer who imposed a discretionary life term was required at the same time to nominate a minimum term of imprisonment for which the prisoner must serve for the offence.

8. Thus there are two types of prisoners who may be sentenced to discretionary life terms :

(a) those convicted of Murder but who are under the age of 18 at the time of the commission of the offence (and not sentenced to a fixed term); and

(b) those convicted of offences other than Murder which have as their maximum penalty a life term.

In either case, a minimum term must be fixed by virtue of section 67B of the CPO.

9. At the time of the enactments in 1996, there were a number of serving prisoners who were not affected by the changes brought about by the then new legislation.  They were, in effect, in three groups, namely :

(a) those who were detained at Her Majesty’s Pleasure;

(b) those sentenced to Life Imprisonment albeit that at the time of their offences were under the age of 18 (mandatory life terms); and

(c)    those sentenced to Life Imprisonment for offences other than Murder but where no minimum term was fixed.

10. Sections 67C, D and E of the CPO were enacted at the same time to provide for these prisoners.  The effect of the provisions were that for those prisoners who fell into the above categories, the Chief Executive, on the advice of the Chief Justice, would fix a minimum term.  A minimum prison term was determined for the respondent in June 1998.  

11. After resumption of sovereignty in 1997 those prisoners who were formally detained at Her Majesty’s Pleasure were continued to be detained at Executive discretion. 

12. In Yau Kwong Man & Lai Hung Wai v. Secretary for Security [2002] 3 HKC 457, Hartmann J ruled that section 67C of the CPO was inconsistent with article 80 of the Basic Law and therefore invalid.  At page 479 of the judgment, he said :

“In the circumstances, I must reject the submission that s.67C bestows on the Chief Executive an administrative power only, even if it is a power that must be exercised judicially.  I am satisfied that s.67C, whatever its form, in substance gives to the Chief Executive the power to exercise what is an inherently judicial power.”

13. As a result of the decision, prisoners serving discretionary life sentences or detained at Executive discretion are left with no lawfully determined minimum terms.  They are still detained pursuant to Executive discretion.

The Criminal Procedure (Amendment) Ordinance 2004

14. To provide a remedy for the situation the Criminal Procedure (Amendment) Ordinance 2004 was enacted and came into operation on 16 July 2004.  The new legislation provides for a revised scheme for the determination of the minimum prison term to be served by a class of prisoners described as “prescribed prisoners” (section 67G).  A “prescribed prisoner” is a prisoner who falls under one of the following three categories :

(i)   those serving a discretionary life sentence in respect of the conviction of any offence;

(ii)   those serving a mandatory life sentence in respect of the conviction of murder committed when the prisoner was under 18 years of age; or

(iii)  those detained at Executive discretion in respect of the conviction of any offence.

The respondent belongs to the last category of prisoners. 

15. Under section 67C(1), the Secretary for Justice is required to apply to the Court of First Instance as soon as practicable and within six months from the date the enactment for a determination by a judge of the minimum term that a prisoner must serve.  Since the Ordinance came into effect on 16 July 2004, the last date for the Secretary for Justice to make the application would therefore fall on 15 January 2005.  The phrase “as soon as practicable” imports a sense of urgency into this piece of legislation and to the proceedings arising therefrom.  The concern of the legislature is entirely understandable as subsequent to the Yau’s case, the Prescribed Prisoners are left without a lawfully determined sentence.  In the interest of justice, this uncertain state of affairs must be resolved expeditiously. 

16. The key operative provisions can be found at sections 67C(3) and (4) :

“(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.

(4) Where the prescribed prisoner is serving the relevant sentence in respect of the conviction of murder committed when he was under 18 years of age, then, subject to the consent of the prescribed prisoner to the application of this subsection to him, the judge has the discretion as to whether —

(a) to make a determination under subsection (3); or

(b) to determine instead that the relevant sentence be quashed, and be substituted by a sentence of imprisonment for a fixed term of such duration as the judge considers appropriate.”

17. The effects of these subsections are that any Prescribed Prisoner coming before the judge on an application is entitled to know the minimum term that he must serve for the relevant offence.  For prisoners coming under subsection (4), subject to the prisoner’s consent to the application of subsection (4) to him, the judge hearing the application has the choice of determining the minimum term or to impose a fixed term of imprisonment.

18. My reading of subsection (4)(b) is that it confers on the judge hearing the application the power to quash a lawful sentence imposed by another judge of the High Court or the then Supreme Court.  The power to quash a lawful sentence would have been, in normal circumstances, exercisable only by an appellate court.  The fact that a court of parallel jurisdiction is conferred such powers suggests that this power should be exercised only in the most appropriate circumstances and when the case wholly justifies such a course to be taken.  I shall revert to this subsection later in this judgment.

19. Section 67C(5) provides guidance on how the judge should make a determination :

“(5) In making a determination under this section —

(a) subject to paragraph (b), 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; and

(b) the judge must not take into account the previous recommendation or the previous determination.”

20. My reading of subsection 5(a) is that the judge may take into consideration all material submitted to him and which he considers to be relevant.  Those material must, by implication, include material which become available subsequent to the original sentence.  This is in fact the common approach adopted by both parties in this hearing.  It makes tremendous sense for it would be absurd if the judge, on the one hand, is empowered to quash the original sentence but is yet required to confine himself only to what must be the outdated material that was before the judge passing the original sentence.

The application of sections 67C(4)(a) and (b)

21. The next issue that needs to be addressed is whether it is appropriate for me to make a determination of the minimum term pursuant to section 67C(4)(a) or for an order to quash the relevant sentence and substitute it by a fixed imprisonment term pursuant to section 67(4)(b).  To resolve this issue, I think it is necessary to determine the exact nature of the sentence of detention at Her Majesty’s Pleasure; the subsequent development in the Hong Kong legislation and the effect they have on those so detained. 

22. The true nature of the sentence of detention at Her Majesty’s Pleasure was considered by the English House of Lords in R. v. Secretary of State for the Home Department, ex parte Venables [1998] AC 407.  In a majority decision, the House of Lords observed that detention at Her Majesty’s Pleasure was not the same as a sentence of life imprisonment.  It was a more lenient sentence which is wholly discretionary.  In Lord Hope’s speech, at p.532 he said :

“… the sentence of detention during Her Majesty’s pleasure is a separate and distinct sentence from that of life imprisonment.  It recognizes the special characteristics of the young offender, and especially of the child offender.  There is built into the sentence a measure of leniency in view of the age of the offender at the time of the offence. … He is to be detained without limit of time, but expressly on terms which do not deprive him of his liberty for the rest of his days.”

23. At page 498 Lord Browne-Wilkinson stated :

“Detention during Her Majesty’s pleasure is wholly indeterminate in duration : it last so long as Her Majesty (i.e. the Secretary of State) considers appropriate …”. 

His Lordship expressly stated that this sentence is not the same as a mandatory life sentence imposed on an adult murderer.

24. After the resumption of sovereignty in 1997, those prisoners who were formerly detained at Her Majesty’s Pleasure had since been detained under Executive discretion.  Although there had been a change of terminology, the nature of detention remained unchanged : the prisoner is still detained for indeterminate duration at the discretion of the Executive.  

25. In the case of the respondent, if the murder was committed after the enactment of section 2 of the OAPO in 1993, he would have been sentenced to life imprisonment.  This provision is applicable irrespective of an offender’s age.  This has the effect of a mandatory life imprisonment.

26. Then came 1996.  Section 2 of the OAPO was amended and section 67B of the CPO was enacted.  For a person under 18 who was convicted of murder, the judge had the discretion either to sentence the offender to a life term or to a fixed term of imprisonment.  Section 67B of the CPO provides that sentencer who imposed a discretionary life term was required to nominate a minimum term of imprisonment to be served by the prisoner.  This however does not apply to those who were sentenced to serve a fixed term.  In the case of the respondent, had he committed the offence after 1996, he would have either been sentenced to a life term with a recommended minimum term of imprisonment or to a fixed term.  

27. Pursuant to the repealed section 67C, the Chief Executive fixed a minimum term for the respondent in June 1998.  Without revisiting the constitutional validity of the order for a minimum term which had been resolved by Hartmann J in Yau Kwong Man’s case, it appears that in fixing a minimum term for a prisoner, there had been an assumption that the prisoner had been sentenced to a life term.  The reason being that if the respondent was sentenced to a fixed term, a minimum term would not have been required at all.

28. In the case of the respondent, and for all prisoners who were detained at Her Majesty’s Pleasure, what had started as a indeterminate sentence, which is not a life sentence, had become, by the operation of section 67C, a life sentence for which they received a minimum term ordered by the Chief Executive.  This latter sentence is very different for the more lenient sentence of detention at Her Majesty’s Pleasure.  This is a clear infringement of their rights under Article 12 of the Hong Kong Bill of Rights which provides :

“Article 12
No retrospective criminal offences or penalties

(1)   No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under Hong Kong or international law, at the time when it was committed.  Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.”  (My emphasis)

I do not think it can be seriously argued that being detained at Executive discretion is a more severe penalty than a life term.  The converse must be true.

29. If I were to impose a minimum term without first passing a notional life term on the prisoner, I can foresee some interesting developments.  In the future when the respondent had served out the minimum term and the respondent is considered by the Long Term Prison Sentence Review Board not sufficiently fit for release who then would have the authority to order further detention of the respondent?  Without first passing a life sentence, the minimum term would have very little meaning.  It is doubtful if the Board, not being appointed by the Chief Executive on recommendation of the Judicial Officers Recommendation Commission, would have the authority to order further detention of the respondent which I consider to be, in essence, a judicial function.  In the event that the respondent has to appear before the court again for an order of further detention, it would have defeated the purpose of the present exercise for the respondent is still facing a sentence of indeterminate duration.

30. In my view, prisoners belonging to this category, the respondent included, should be given a fixed-term sentence based on the reasons stated above.  Not only would a fixed-term sentence be a more lenient sentence compared to a life term, it would also serve to remove any element of uncertainty in the minds of the prisoners as to how much longer they would have to be detained. 

31. Even if I was wrong in my interpretation of sections 67C(3) and (4) of the CPO in respect of this class of prisoners, I would still be of the view that the proper approach, in so far as they are concerned, is to quash the original sentence and pass a fixed term sentence.  A minimum term sentence is indeterminate in nature and is open-ended.  As far as I am aware there has never been a case where a prisoner is released automatically after serving the minimum sentence.  The shortest period of imprisonment already served by a prisoner under this category is, as at 1 November 2004, 12 years and 2 months.  In a case where a person was sentenced when he was below the age of 18, it would mean that the prisoner would have spent over two thirds of his adult of life in prison.  If they are to ask the question “how much longer?”, they ought to be given an answer in unequivocal terms.  The possible adverse effects of a prolonged state of uncertainty are that it may defeat the prisoners’ motivation and they would gradually become institutionalized.  A fixed term would serve to remove any element of uncertainty in their minds. 

32. My attention has been drawn by the applicant to the case of HKSAR v. Harman Preet, CACC190/2004，the judgment of which was handed down by the Court of Appeal on 17 March 2005.  The court examined my judgment in Lai Hung Wai, HCMP2208/2004 and Yeung Mok Yeh & Another, HCMP2209/2004, and commented that I had fallen into error in that my approach in those cases had the effect of derogating the court’s duty to consider the merits of each case, and that I should not have adopted blanket approach to impose a fixed term sentence in all cases involving prisoners who were sentenced to be detained at Her Majesty’s Pleasure.  In the same judgment, at paragraph 73, the Vice-President is of the view that :

“….There is, in such cases, no entitlement to know the length of the sentence and whether a life term or a fixed term is imposed under either section 67B or 67C will depend on the properly exercised discretion of the sentencer. ….”

33. I am bound by observation of the Vice-President and in so far that each case must be considered on its own facts; that would be my guiding principle in my approach in this case.

34. The respondent has given his consent through his counsel, Mr Haynes, should the court considers appropriate to quash the original sentence and substitute it by a fixed prison term. 

35. It would be useful to note here that five persons were indicted on the two counts of murder.  The 3^rd accused, Won Sam Lun, pleaded guilty to two counts of murder and gave evidence in the prosecution case.  Won was also 16 years of age at the time of the offence.  He was sentenced to be detained at Her Majesty’s Pleasure for the two counts of murder for which he pleaded guilty.  On 28 September 2004, Won’s sentence was commuted to a fixed term of imprisonment of 28 years and 3 months and he had since been released.

36. Mr Haynes invited this court to pass a determinate sentence of the same term as in the case of Won.  He advanced a number of reasons in support of his contentions.  I shall address the points he made at a later stage.

37. The respondent has a clear record prior to the present offences. 

The Reports

38. I have the following reports before me : the Correctional Services Report dated 23 March 2004; a Psychiatric Report dated 3 December 2004 and two Psychological Reports dated respectively 2 November and 8 December 2004.  The tenor of the reports are positive and the respondent has benefited significantly from the rehabilitative programmes offered by the Correctional Services Department during the years of his detention.

39. The Correctional Services Report reveals that since the respondent’s admission he incurred two disciplinary reports in July 1986 and January 1991.  The reporting officer said :

“…. Soon after his last disciplinary report, he adopted a positive attitude towards the treatment programmes.  He was able to stay away from troubles and maintained a harmonious relationship with other prisoners. …. He continued his effort to reform himself and kept a steady progress.  Obviously, he exerted much effort to rectify his criminal behaviour and made good progress in the course of reformation. ….”

His institutional performance is described as “Good”.

40. Since 1996 the respondent had sat and passed various public examinations held by the Pitman Institution and the HKCEE.  In 1996 he enrolled in a degree course in translation offered by the Open University of Hong Kong and is presently continuing his studies.  He also participated in social awareness programmes and won several awards and received commendations.  His educational performance is described as “Good”.  The overall performance of the respondent is graded as “A”.

41. In the Psychiatric Report prepared by Dr C.H. Yuen, Visiting Consultant Psychiatrist from the Siu Lam Psychiatric Centre dated 3 December 2004, the doctor is of the opinion that the behaviour of the respondent is not suggestive of that he might have anti-social personality or psychopathic disorder.  Over the years the respondent seems to have matured and has been actively trying to improve himself.  So far as the risk of re-offending in crimes of violence is concerned, the doctor is of the opinion that it should be low.

42. Mr Francis Butt, Clinical Psychologist of the Correctional Services Department, reported that he has detected genuine remorse and a strong sense of responsibility in his sessions with the respondent.  The respondent’s chances of re-offending are low and the need for future intensive supervision is minimal.  Mr Butt concluded by saying :

“…. Present evidence – based [on] assessment procedures indicate his long-term risk of violent recidivism is low.  However, CHEUNG may need a strong continuous system of social support in order to strengthen his motivation to maintain his positive changes. …. As his prognosis is seen to be positive, intensive psychological intervention is not indicated.”

43. Dr Anita Leung, a Clinical Psychologist in private practice, shared the same view.  At the conclusion of a 2½-hour interview with the respondent at the Siu Lam Psychiatric Centre on 2 December 2004, Dr Leung reached the following conclusion :

“At the time of assessment, after 19 years of imprisonment and rehabilitation, Mr. Cheung impresses to have grown up and evolved into a positive and healthy personality.  He is assessed to be well above average in his global functioning.  He is believed to be resilient enough to cope with any difficulties and stress lying ahead.

He is mentally and emotionally well prepared to integrate back to society.  He has acquired a Diploma in Language and Translation, and is presently pursuing a Degree course in the Open University at Hong Kong.  He has established an adequate social support network in the community.  He can be a constructive asset in society.  He has been active in helping others, enjoying the give and take social interaction.  He aspires to be the master of his own life.”

44. Based on the available information before me, the respondent appears to be a reformed person and he had substantially rehabilitated himself over the years.  A fixed term sentence, in my view, is appropriate under these circumstances.

The appropriate sentence

45. As mentioned earlier, Mr Haynes for the respondent invited this court to pass a prison term of 28 years and 3 months which is similar to that of the co-accused Won.  In support of his contention Mr Haynes informed the court that the respondent had offered to plead guilty and to give evidence for the prosecution at the trial.  Mr Saw SC for the applicant, in his usual fairness and responsible manner, applied for an adjournment so that he could search the case files with the Department of Justice for any possible documents which supported Mr Haynes’ contention.  The result was that no document indicating that the respondent had offered to plead guilty or to give evidence for the prosecution could be located.  The fact therefore remains that the respondent pleaded not guilty to the counts on the indictment and did not give evidence for the prosecution.

46. At the trial the respondent challenged the admissibility of his caution statement both in the voir dire and at the trial proper.  He elected to give evidence in his defence in the trial the gist of which was that he was acting under duress when he was forced by the leader of the gang to deliver blows at the victims.  The issue of duress was not left to the jury by the trial judge in his summing up.  The judge directed the jury on the basis that each murder was a joint enterprise and to convict the respondent of murder they must be satisfied that the respondent had the intention to kill.  In returning verdicts of guilty, the jury must have accepted that the contents of the caution statement given by the respondent as true and that the respondent had the necessary intent to kill.

47. In view of what transpired at the trial, Mr Haynes’ submission was bold but unrealistic in inviting this court to pass on the respondent a sentence of 28 years and 3 months which is similar to that of the co-accused Won.  Suffice it to say the circumstances of Won and the respondent are entirely different and I reject Mr Haynes’ submission in this respect.

48. This is the worst possible case of murder and those who committed these offences are devoid of any element of human decency.  I assess the appropriate sentence to be a prison term of 37 years.  I would however give credit for the efforts of the respondent in improving himself, both in educational pursuit and his good performance during his detention.  I am prepared to give him a discount of two years from the sentence of 37 years.

Conclusion

49. For the reasons I have stated, I would exercise the powers vested in me pursuant to section 67C(4)(b) of the CPO and order that the sentence passed on the respondent by O’Connor J on 20 January 1987 be quashed.  The sentence is substituted by a sentence of 35 years’ imprisonment.