SECRETARY FOR JUSTICE v. CHAN CHI WAH

HCMP2249/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.2249 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 (“the Ordinance”), for a determination under section 67C(3) of a minimum term for the sentence of the respondent Chan Chi Wah imposed by the High Court in HCCC166/1983.

Background

2. On 7 October 1983, the respondent was charged on indictment of two counts of attempted rape and four counts of rape.  He pleaded guilty to two counts of rape and on the attempted rape charges, he pleaded guilty to indecent assault.  The prosecution accepted those pleas in satisfaction of the indictment.  The two remaining rape counts were ordered to remain in the court file and not to proceed without leave of the court.

3. On 4 November 1983, Macdougall J imposed sentences of three years’ imprisonment on each of the indecent assault counts and life imprisonment on each of the rape counts.

4. 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.

5. 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.

6. 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.

7. 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.”

8. 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.

9. The object of the present exercise is therefore for this court to determine the minimum term which the respondent must serve for the two rape counts for which he was sentenced to life imprisonment in 1983.

10. At the time when sentence was passed on the respondent on 4 November 1983, Macdougall J observed :

“	… On the 26th May, 1977 you were convicted on one count of rape and on two counts of indecent assault on a female.  All of these offences were committed on girls of tender years.  Having received a sentence of 6 years imprisonment you were released from prison on the 22nd August, 1981.
	On the 16th January, 1982 less than five months after your discharge you committed the first of the four offences to which you have pleaded guilty in this court.  On the 27th February and the 22nd December of the same year you again committed rape.  And the victims of your rapes and indecent assaults were girls aged 13, 14, 12 and 11.  All offences were committed on a hillside frequented by groups of young girls.
	On each occasion you were armed with a knife.  When the victim of the rape of the 22nd December began to resist you threatened to slash her with the knife.  On each occasion, moreover, you accosted a group of young girls and selected your victim from among their number.  Their other girls in the group were either forced to lie or squat down and cover their faces or avert their gaze whilst you sexually abused the other girl.
	I accept that apart from the indecent assaults and rapes themselves you did not inflict any physical harm on your victims.  I hesitate to conjecture as to what might have happened had you encountered any real resistance.  Having armed yourself with a knife and having threatened to slash one girl’s face with it when she began to resist, it seems to me that an hysterical outburst from one of the victims, or a sudden violent resistance on her part might easily have produced untoward consequences beyond your initial contemplation.  Notwithstanding the absence of additional violence on these girls, it is apparent that the psychological effect, not only on the victims, but on their companions, is incalculable.
	The psychiatrist has reported that you don’t suffer from any formal mental disorder, but that you are sexually immature.  You told the psychiatrist and, indeed, you told a similar story to the probation officer that after reading pornographic magazines you are unable to control your sexual impulses.  It is plain from the psychiatric report that you seek out girls of a tender age because you anticipate minimal resistance from such a class of victim.
	…
	However, you are a continual offender.  Were it not for the very real and frightening possibility that you will continue to commit similar offences on your release from prison I would have imposed a total determinate sentence of 12 years imprisonment.  However, it appears clear to me from your history that you are a person of unstable character likely to continue to commit similar offences in the future and to be a danger to young girls of tender years for an unpredictable and indefinite period of time.  In all the circumstances, I have very reluctantly come to the conclusion that I must pass a sentence of life sentence on you in respect of each of the rape offences.”

11. On 17 November 1983, the respondent applied for leave to appeal against his sentence.  The application was dismissed by the Court of Appeal on 17 February 1984.  The respondent has been in custody since January 1983.  At the time of this application, he has been in custody for 22 years.

Meaning of “minimum term”

12. Under the present legislation, this court is required to determine a minimum term for which the respondent must serve for the two rape counts 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.”

13. 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)

14. In HKSAR v. Cheung Lai Man [2004] 2 HKLRD 473 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.”

15. 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

16. 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.”

17. 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

18. 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.

19. 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”

20. At the time of the respondent’s convictions for the present offences, he already had three previous convictions for one count of rape and two counts of indecent assault for which he was sentenced to prison for six years in August 1977.  He was released in August 1981.  The present series of offences were committed in January 1982 which was therefore less than six months after his release from prison.

21. During the respondent’s incarceration, he had participated in a number of intensive psychological counselling programmes directed at sexual offenders.  Over the years, he had gradually gained insight into his criminal behaviour.  In her report dated 5 January 2005, the clinical psychologist Ms Yvonne Lee observes that :

“… Nevertheless, upon completion of the program, the group facilitators rated his risk of sexual recidivism as moderate and recommended follow-up work for actual application of relapse prevention skills in the community.”

Ms Lee concluded in the report by the following remark :

“… Nevertheless, in view of his sex offence history and habitual outdoor sex against underaged females in previous assaults, continued psychological follow-up and close supervision is deemed necessary should he return to the society at this juncture.”

22. Despite the respondent’s encouraging progress over the years, it can be seen from the report that the case clinical psychologist is nevertheless cautious about the respondent’s potential to re-offend when released.

23. In the Correctional Services Report dated 20 September 2004, the respondent is reported to have maintained a good learning habit over the years and participated in public examinations with fair results.  Since his admission he was assigned mainly to work in the trade of garment making and his performance was said to be satisfactory.  His overall performance was graded “A”.  However, in August 2003, he had breached prison regulations by engaging in a fistfight with another prisoner.  Since that incident, he showed deep regret about his misbehaviour and had put in strenuous efforts to improve himself.  During counselling sessions offered by the Correctional Services Department, the respondent had shown deep sense of remorse towards his past criminal activities and he appeared to be aware of his own problems.

24. In the psychiatric report prepared by Dr Lui Shing Heung dated 11 January 2005, the doctor was not able to detect any mood or mental symptoms.  The respondent is diagnosed as not suffering from any form of mental illness.

25. In Cheung Lai Man (supra), the Court of Appeal set aside three concurrent terms of life imprisonment imposed on the appellant on three counts of rape to which he pleaded guilty.  The victims in that case were students aged between 12 and 21 and were attacked while on their way to school.  It was a premeditated and well-planned attack and the assaults were recorded on video tapes that formed part of the appellant’s pornographic collection.  The sentencing judge specified a minimum term of 20 years’ imprisonment.  In substituting a starting point of 18 years for each count of rape, the Court of Appeal gave a 1/3 reduction to reflect the guilty pleas.  The six years on each of the remaining two counts of rape were ordered to run consecutively to the 12 years on the 1^st rape count.  The total sentence imposed on the appellant was one of 24 years’ imprisonment.

26. The Court of Appeal in Cheung Lai Man furtherobserved that the original minimum term of 20 years’ imprisonment was excessive.  If one is to work backwards, and give appropriate discounts for the appellant’s guilty plea and the remission he would have been given under the Prisons Ordinance, Cap. 234, the original sentence was equivalent to an effective starting point of up to 45 years’ imprisonment.

27. If the respondent is sentenced today for the offences, he would have attracted a term of 12 to 14 years’ imprisonment for each rape count.  Macdougall J indicated towards the end of his Reasons for Sentence that he would have imposed a total determinate sentence of 12 years’ imprisonment.  Although the judge did not state how he arrived at the term of 12 years, it can be safely assumed that he must have taken into consideration the totality principle and had given some credit for the respondent’s plea of guilty.  The judge would not have given the respondent a full one-third discount as an accused person would have enjoyed today if he chooses to plead guilty to the offences.

28. Pursuant to rule 69(1) of the Prison Rules of the Prisons Ordinance, Cap. 234, a prisoner is entitled to a remission of up to one-third of the total of the actual prison term for his industry and good conduct.  A person sentenced to life imprisonment by virtue of rule 4 is not entitled to such remission.

29. In the present case, if one adopts a starting point of 12 years for each count of rape and if the respondent is to be given a full one-third discount for his plea, it would have resulted in a nett sentence of eight years for each rape count.  Bearing in mind that a possible further one-third remission for industry and good behaviour, I determine the minimum prison term the respondent must serve for the two counts of rape to be 14 years.