LAI HUNG WAI v. SUPERINTENDENT OF STANLEY PRISON

HCAL 24/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.24 OF 2003

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J U D G M E N T

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Introduction

1. The applicant in this matter, a prisoner serving a sentence imposed upon him in 1989 by a judge of the High Court, seeks the issue of a writ of habeas corpus. He does so on the basis that his continued imprisonment is unlawful.

2. In November 1989, the applicant was convicted of the offence of murder. At the date of the commission of the offence, he was under the age of 18 years. Accordingly, in terms of s.70 of the Criminal Procedure Ordinance, Cap.221, as it then was, he was sentenced to be detained at Her Majesty's pleasure. Upon the change of sovereignty, that sentence was by statute given the nomenclature of detention at Executive discretion.

3. In describing the nature of the sentence of detention at Her Majesty's pleasure (i.e. at Executive discretion) Lord Hope in his speech in the House of Lords in R v. Secretary of State for the Home Department, ex parte Venables [1998] AC 407 observed :

"... 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. The measure of that leniency is that, in his case, in the working-out of the sentence, punishment and welfare, present and future, are both equally relevant. 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."

[my emphasis]

4. Sentences of detention at Executive discretion are in practice monitored by committees or boards of review which look to and weigh in the balance the matters to which Lord Hope made reference. In Hong Kong, the relevant body is the Long-term Prison Sentence Review Board ('the Review Board') constituted in terms of the Long-term Prison Sentences Review Ordinance, Cap.524. In terms of s.8 of the Ordinance, the Review Board must have primary regard to certain penological principles; namely :

"(a) in any case where the prisoner has not been completely rehabilitated, the rehabilitative effect of releasing the prisoner from detention before the unremitted part of the prisoner's sentence is served;

(b) the benefits to the prisoner and to the community arising from the prisoner being supervised after release with a view to securing, or increasing the likelihood of securing, the prisoner's rehabilitation (in any case where the prisoner has not been completely rehabilitated) and successful reintegration into the community;

(c) whether the part of the prisoner's sentence already served is sufficient, in all the circumstances (in particular given the nature of the offence for which the prisoner is being detained), to warrant consideration being given to having the prisoner released from detention early;

(d) the need to protect members of the community from reasonably foreseeable harm that could be inflicted by the prisoner as a result of having been released from detention early."

5. A sentence of detention at Executive discretion is therefore a discretionary sentence, that discretion being employed to determine the most appropriate time to release the young offendor so that he or she may be reintegrated into society. As such, of course, it is an indeterminate sentence; that is, a sentence containing no determined date for release. All indeterminate sentences, by their nature, are uncertain.

6. In 1997, recognising the benefits of giving some although not complete certainty to prisoners (young offendors and adults) sentenced to long-term, indeterminate sentences, changes were made to the law. When passing such sentences, courts were now to specify as part of the sentences a 'minimum term' that must be served before consideration would be given to release, the purpose of that minimum term being to meet the imperatives of retribution and deterrence.

7. In respect of persons such as the applicant who were already serving long-term, indeterminate sentences lawfully imposed by courts of competent jurisdiction, the changes to the law, in terms of s.67C of the Criminal Procedure Ordinance, provided for an administrative scheme in terms of which the Chief Justice would recommend minimum terms to the Chief Executive who would then make the final decision to determine; that is, to decide on the appropriate duration of those minimum terms.

8. In respect of the applicant, the Chief Justice recommended that he serve a minimum term of 20 years in order, having regard to the circumstances of his offence, to meet what I have called the imperatives of retribution and deterrence. That recommendation was accepted by the Chief Executive and imposed upon the applicant. That being the case, at that time, even though it afforded him cold comfort, the applicant had a measure of certainty at least as to the minimum period he would have to serve in detention, the balance of his sentence, itself being indeterminate, to be assessed by the Review Board.

9. In 2001, the applicant (and one other young offendor detained at Executive discretion) brought judicial review proceedings to challenge the constitutional validity of the legislation in terms of which by administrative means the Chief Executive had determined his minimum term. In a judgment handed down on 9 September 2002 (Yau Kwong Man & Another v. Secretary for Security [2002] 3 HKL 457), I ruled that the relevant legislation; specifically, s.67C of the Criminal Procedure Ordinance, was inconsistent with the Basic Law and was thereby invalid in that it purported to place in the hands of the Executive the judicial power of assessing sentence.

10. In the result, the minimum terms imposed upon the applicant and the limited number of prisoners in his position were no longer of any force or effect. The applicant and those other prisoners continued to be detained at Executive discretion but without knowing what minimum terms would, if at all, be formally imposed by judicial process to reflect the punitive element of their sentences.

11. The Secretary for Security did not appeal the judgment of 9 September 2002. I am told that steps have been taken to prepare new legislation so that prisoners in the position of the applicant will now have their minimum terms assessed in accordance with a judicial as opposed to administrative process. I am further told that draft legislation will be placed before the legislature sometime during its next session; that is, within the next several months.

12. Accordingly, at this time, although he is aware that legislative measures are intended, the applicant is serving his indeterminate sentence without that measure of certainty that is imparted by a lawfully assessed minimum term. It is this absence of a minimum term that has given rise to the present proceedings, proceedings in which, as I have said, the applicant seeks a writ of habeas corpus on the basis that his continued detention has become unlawful.

13. The applicant does not dispute that in November 1989 he was sentenced in accordance with law by a court of competent jurisdiction. In short, he does not dispute the fact that the sentence imposed upon him was in all respects a lawful sentence. It is contended, however, that the sentence has now ceased to be lawful. It has ceased to be lawful, so it is argued, primarily because it offends art.3 of the Hong Kong Bill of Rights, the Bill of Rights being the incorporation into Hong Kong law of the International Covenant on Civil and Political Rights ('the ICCPR'). In so far as it is relevant, art.3 provides that :

" No one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment."

14. Mr Harris, who appeared for the applicant, submitted that in respect of young offendors serving long-term, indeterminate sentences, it was now recognised as fundamental in all 'advanced jurisdictions' that, to ensure their progress toward rehabilitation, young offendors should at least be given a fixed term which they know they must serve in order to expiate the punitive element of their sentences. If they know that thereafter, absent risk to the community, they can expect to be set free they then have a 'target date' to work towards. A failure to provide this 'target date', he said, leaves a young offendor in such a state of uncertainty that it amounts to a cruel punishment within the meaning of art.3 of the Bill of Rights. It further so reduces the self-worth of the young offendor that it constitutes a degrading punishment within the meaning of the same article.

15. Mr Harris further submitted that art.28 of the Basic Law is offended if a young offendor is left in a state of uncertainty, that article providing the following constitutional guarantees :

" No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment."

In this regard, Mr Harris sought support from the judgment of the Court of Final Appeal in Lau Cheong & Another v. HKSAR (2002) 5 HKCFAR 415, paras.41-43, in which the Court held that, in terms of art.28, a term of imprisonment lawfully ordered may nonetheless be 'arbitrary'; that is, inappropriate, unjust and/or lacking predictability.

16. In essence, as I understood him, Mr Harris advanced the submission that, in respect of young offendors, it was not simply to their possible benefit to provide them with some certainty by assessing a minimum term, it had now become an essential element of all long-term, indeterminate sentences served by young offendors. In consequence, a failure to set such minimum terms rendered such sentences unlawful by reason of the fact that they then constituted cruel, inhuman or degrading punishment, stripping young offendors of their inherent dignity and degrading their sense of self-worth. The failure therefore by judicial means to assess a minimum term for the applicant, said Mr Harris, has rendered his continued detention unlawful.

17. On the basis of those contentions, if Mr Harris is correct and a writ of habeas corpus is issued, the applicant (and those other prisoners in his position) would, it seems to me, be entitled to immediate release. That after all is the function of what has been described as 'the great writ of liberty' : to ensure the release of those held unlawfully. Mr Harris, however, sought a less direct remedy. Instead, for all practical purposes, what he sought was the exercise by this court of its purported power under habeas corpus to fill the lacuna that presently exists in the law by :

(a) assessing a new minimum term for the applicant according to judicial process, and

(b) if it is found that an appropriate minimum term has already been served, absent risk to the community, ordering the release of the applicant, or

(c) if it is found that an appropriate minimum term has not yet been served, declaring how much longer must be served by the applicant to expiate the punitive element of his sentence.

18. It should be said that, on the basis of submissions made by Mr Harris, the vitiated minimum term of 20 years imposed on the applicant by the Chief Executive had been manifestly excessive. Mr Harris argued for a minimum term of 14 years, the applicant having already served that period.

19. Mr Harris accepted that, in Hong Kong at least, the remedy that he sought would extend the traditional scope of habeas corpus. He submitted, however, that when constitutionally guaranteed rights were in issue a purposive approach must be applied. His submission, I believe, is best encapsulated in a statement made in the United States authority of Jones v. Cunningham, 371 U.S.236 at 243 (1963) to the effect that habeas corpus "not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty".

20. This then (in broad terms) was how Mr Harris sought to obtain the issue of a writ of habeas corpus. In my judgment, however, while I salute at least the eloquence of the philosophy he propounded and acknowledge the desire to secure for the applicant some certainty as to how much longer he must endure imprisonment, I believe the application to be misconceived. I say so for the following reasons which I shall enlarge upon in the body of this judgment :

(a) Contrary to submissions made, a long-term indeterminate sentence of imprisonment that contains no minimum term is not, in respect of young offendors, viewed across jurisdictions as contravening human rights covenants, conventions or constitutional instruments reflecting international norms.

(b) Even accepting that it may well be to the applicant's advantage (as our legislature intended in 1997 in passing s.67C of the Criminal Procedure Ordinance) to have his indeterminate sentence given a degree of certainty (although not absolute certainty) by the assessment of a minimum term, the circumstances of his present detention cannot, on any rational viewpoint, be said to have attained the level of severity required to constitute cruel, inhuman or degrading punishment nor punishment that is arbitrary.

(c) In any event, the applicant's complaint relates to the lawfulness of the conditions under which he must at present serve his sentence, it does not relate to the lawfulness of the sentence itself. That being the case the applicant must seek his remedy (if he has one) by way of other proceedings not habeas corpus. Put succinctly, this Court has no jurisdiction to grant the orders sought by way of habeas corpus.

An indeterminate sentence without a 'minimum term' does not offend international human rights law

21. In 1991, the Government of the United Kingdom ratified the United Nations Convention on the Rights of the Child, extending the Convention to Hong Kong in 1994. In June 1997, the Government of the People's Republic of China informed the United Nations that the Convention would continue to be applied to Hong Kong after the change of sovereignty. Art.1 of the Convention says that, under the Convention, 'a child' means

" ... every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier."

22. Art.37 of the Convention states :

" States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offence committed by persons below eighteen years of age ..." [my emphasis]

23. In terms of art.37, it is accepted therefore that life imprisonment may be imposed on a person under the age of 18 years provided the sentence shall not literally mean 'for life' and shall therefore contain the 'possibility' not certainty of release at some future date. In short, in respect of young offendors, the Covenant recognises that long-term indeterminate sentences are lawful. No mention is made in art.37 (or elsewhere in the Covenant) of the requirement to ensure that young offendors are provided with a yardstick to enable them to measure with any degree of certainty how long their indeterminate sentences will be. Instead, what is emphasised in the Covenant is the need to look to the reintegration of young offendors into society. Put simply, what is recognized is not the need for certainty but the need to look to rehabilitation. In this regard, art.40 of the Convention recognises

"... the right of every child ... having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society." [my emphasis]

24. Art.6(3) of the Bill of Rights also promotes rehabilitation but is silent on the issue of certainty. Art.6 in its entirety reads :

" (1) All persons deprived of their liberty shall be treated with humanity and with respect of the inherent dignity of the human person.

(2) (a)	Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.
(b)	Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.

(3) The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status." [my emphasis]

25. In the course of his submissions, Mr Harris placed reliance on the observations of Lord Woolf M.R. in R v. Home Secretary, ex parte Venables [1998] AC 407. In that case, Lord Woolf looked to the imposition on young offendors of what (at the time) in the United Kingdom was called a 'tariff period', it also being a specific term within an indeterminate sentence assessed to meet the imperatives of retribution and deterrence. In looking to the purpose of the tariff period, Lord Woolf commented :

"... it allows a young offender to know the period during which he is unlikely to be released and when he should prepare himself to put forward representations. The objection which is most often made by those subject to an indeterminate sentence is its uncertainty. They need a target date. It is also sensible from the administrator's point of view. It avoids conducting reviews which will serve no purpose at times when there is no question of the offender being released from custody which will only give rise to unjustified expectations on the part of the detainee. In addition it identifies the penal element which perfectly properly the young offender can normally be expected to serve by way of punishment." [my emphasis]

26. Read in context, it is manifest, in my view, that Lord Woolf was not in any way attempting to define a penological principle of universal application. He was doing no more than confirming the lawfulness in public law terms of a policy developed by the Home Secretary, a policy developed to meet what the government of the day considered to be appropriate for the United Kingdom. Indeed, the observations made by the Master of the Rolls come under the heading : 'The application of the policy', the first paragraph under the heading reading :

" The Home Secretary's discretion as to release [of young offendors] is very wide. It is the type of discretion which calls out for the development of policy as to the way it will in general be exercised. This should assist in providing consistency and certainty which are highly desirable in an area involving the administration of justice where fairness is particularly important."

27. It is true that Hong Kong drew on the United Kingdom experience to fashion its own mechanism for the assessment of minimum terms but that of itself does not (and cannot) elevate the policy of assessing 'tariff' or 'minimum' terms to one of universal application. It says no more than that one jurisdiction, sharing legal and administrative history with another, has drawn from that other to advance its own penological systems.

28. No doubt different jurisdictions promote different schemes to try and promote the rehabilitation of offendors so that they may reintegrate into society and not offend again. In some jurisdictions, for example, in respect of adult prisoners, conjugal visits may be allowed to try and prevent the disintegration of marriages. But an administrative scheme adopted to that end in one jurisdiction does not ipso facto mean that it becomes a universal requirement. Only the slow confluence of internationally shared ideals achieves that end. Flowing from that, while I recognise that it is legitimate (and no doubt beneficial in the great majority of cases) to be able to give young offendors some certainty as to when they may expect to be released, neither the Covenant nor the other international instruments to which I have been referred direct that it shall be a requirement. These instruments, either directly or by inference, speak instead of the need to look to the reintegration of young offendors into society, a process that may, depending on the individual, take varying times to achieve.

29. I accept that the Bill of Rights and human rights conventions and covenants that are applied to Hong Kong are living instruments and must be interpreted in the light of present-day conditions. I further accept that our courts cannot but be influenced by developments in the penal policies of other similar jurisdictions. But that being said, Mr Harris was unable to refer me to any jurisprudence or academic writings which state that today it offends internationally recognised basic human rights to allow young offendors to serve long-term, indeterminate sentences which are not governed by devices which enable the young offendors with some certainty to assess the duration of their detention.

30. The essential thrust of the argument of Mr Harris, as I understood it, was that the recent refinement of penal policy now rendered it cruel, inhuman, degrading or arbitrary not to have any system for measuring certainty. I have no evidence of that. The indeterminate sentences of detention at Executive discretion imposed in Hong Kong on young offendors is monitored, as I will show later in this judgment, by a statutory system that looks to three fundamentals : first, service of a period of time to expiate the punitive elements of the offence; second, the rehabilitation of the offendor and, third, the question of on-going risk to society. Those three fundamentals, it seems to me, are recognised internationally not only as being lawful but also in full compliance with evolving norms of what lies within the boundaries of just, rational and humane punishment.

31. Mr Fung SC, for the respondent, referred to a decision of the European Court of Human Rights which recognised the inherent lawfulness under the European Convention for the Protection of Human Rights of indeterminate sentences imposed on persons under the age of 18 years. In V v. United Kingdom (1999) 30 EHRR 121, at 183 (para.98) the Court said the following :

" The Court recalls that States have a duty under the Convention to take measures for the protection of the public from violent crime. It does not consider that ... the Convention prohibits States from subjecting a child or young person convicted of a serious crime to an indeterminate sentence allowing for the offender's continued detention or recall to detention following release where necessary for the protection of the public."

32. I recall that it was on the basis of this dicta that, in my judgment of 9 September 2002, I was able to state in respect of the submissions then made that

"It was never disputed during the hearing that indeterminate sentences imposed on young offendors are lawful ... Clearly, in my judgment, they are lawful."

33. Art.3 of the European Convention states :

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

34. It is accepted, of course, that in the passage to which I have referred the European Court did not make reference to the qualification of certainty proposed by Mr Harris. In direct terms at least the passage is silent on the issue. But that being said, the dicta of the European Court was cited in the recent House of Lords judgment of R v. Lichniak [2002] 4 All ER 1122 to the effect that it did not demand certainty. Although Lichniak is not factually on all fours with the case now before me, I believe that the principles enunciated in the speeches are of direct relevance and should be adopted. The decision of the House of Lords in Lichniak was unanimous.

35. Lichniak (and a co-appellant, Pyrah) had been convicted of unrelated murders and sentenced to life imprisonment. Their trial judges were of the view that they were unlikely to present any danger to the public upon release. In respect of both, tariff periods to meet the requirements of retribution and deterrence were set. In terms of the United Kingdom regime (which is not identical to the Hong Kong regime) if thereafter the convicted persons did not present a risk to the community they would be entitled to be released but upon a form of licence which incorporated the risk of recall to prison. Whether they did or did not present a risk would finally be determined when the tariff periods had been served. That being so, neither Lichniak nor Pyrah could know with any decree of certainty when eventually they would obtain their freedom. They complained that the element of uncertainty in their sentences offended art.3 the prohibition on inhuman or degrading treatment and art.5 the right to liberty of the European Convention. The headnote reads :

"... they complained that murderers serving the tariff term of their mandatory life sentences could not know whether or not they would be released at the end of it and so would spend years uncertain about their release date; that, at the end of the tariff term, the onus was on the prisoner to show that it was safe to release him; and that, even when released, the prisoner remained liable to recall."

36. In his speech, Lord Hutton observed that the European Court in V v. UK -

" ... has recognised that an indeterminate sentence, in its operation in practice does not constitute an arbitrary and disproportionate punishment. The judgment of the court in that case related to the sentence of detention during Her Majesty's pleasure imposed on a child convicted of the murder of a younger child." [my emphasis]

Lord Hutton continued by saying that the European Court recognised that -

" when a child or young person is convicted of murder and sentenced to detention during Her Majesty's pleasure the convicted person is not detained indefinitely, but rather is only detained for the tariff period sufficient to satisfy the requirements of retribution and deterrence in the circumstances of the particular case, and that he will only continue to be detained after the expiration of the tariff period if it is necessary to do so in order to protect the public."

In respect of the appellants, Lord Hutton continued :

" Such a sentence is very similar to a mandatory sentence of life imprisonment imposed for murder in that the time spent in detention will consist of a period for punishment and on the expiration of that period the prisoner will be released unless it is necessary to continue to detain him in order to protect the public. Therefore I consider that the reasoning of the Commission and the European Court in V's case applies also to the cases of Lichniak and Pyrah and leads to the conclusion that the life sentences imposed on them were neither arbitrary nor disproportionate."

37. Under the Hong Kong regime, as I understand it, once the minimum term is served the Review Board looks to two matters : the question of on-going risk, as in the United Kingdom, but in addition the matter of a young offendor's rehabilitation; that is, his or her ability to be successfully reintegrated into society. For reasons already given, I have no doubt that the requirement of rehabilitation accords fully with the purpose, intent and specific terms of all relevant human rights instruments that apply to Hong Kong.

38. In Lichniak, as to the issue of uncertainty, Lord Hutton said :

" In my opinion it is not arbitrary to postpone to the end of the tariff period the decision whether a person who has committed a murder would be a danger to the public if released, rather than decide this at the time of his trial. It will not infrequently be the case that the behaviour of a prisoner during the time he is serving the tariff period, and his behaviour on home leave, will give clear indications whether or not he would be a danger to others if released on licence. Moreover I think it probable that the appellant Lichniak would have been reasonably confident that she would be released after the tariff period and the appellant Pyrah can be reasonably confident of his release after he has served the tariff period. There is bound to be some uncertainty in respect of some prisoners as to whether they will be released at the end of the tariff period, and the degree of uncertainty will clearly vary depending on the circumstances of the murder and the background and personality of the prisoner, but I do not consider that such uncertainty can constitute treatment of such severity as to come within the ambit of inhuman punishment forbidden by art 3 or can make the sentence of life imprisonment an arbitrary one." [my emphasis]

Lord Hutton concluded by observing that the crimes committed by the appellants were serious ones, crimes of murder :

" The appellants are persons who have killed another person with intent to kill or cause really serious harm. The appellant Lichniak stabbed her victim with a large carving knife and the appellant Pyrah kicked the head of his victim with a kick like a rugby penalty kick. The nature of a murder, as in these two cases, is often such as to justify careful consideration being given, at the end of the tariff period, to the question whether it would be safe to release the prisoner."

39. I can find nothing in the speech of Lord Hutton to support the submission by Mr Harris in the present case that, as a matter of principle, long-term indeterminate sentences which contain no yardstick of certainty constitute cruel, inhuman, degrading or arbitrary treatment. In my view, the contrary is the case. In saying this I recognise that Lord Hutton was speaking of adults not young offendors and in respect of a penal regime that is in the respects I have outlined materially different from Hong Kong. But, in my judgment, the different strands of reasoning of the House of Lords, although only of persuasive value, are applicable to the present case and, in my judgment, should be applied to it.

40. In conclusion, and in many respects by way of a link to the section which next follows in this judgment, it is important, I believe, to cite from the speech of Lord Bingham in which he looked to the essential nature of the appellants' complaints :

" ... very importantly, I do not consider that the appellants complaints are of sufficient gravity to engage arts 3 and 5(1) of the convention. Those articles protect very important rights: art 3 the right not to be subjected to torture or to inhuman or degrading treatment or punishment, art 5(1) the right not to be deprived of liberty save in accordance with a procedure prescribed by law and save in a number of specified cases, of which the first is lawful detention after conviction by a competent court. But the convention is concerned to prevent significant, not minor, breaches. It has been held that mistreatment must attain a certain level of severity to breach art 3 (see Tyrer v UK (1978) 2 EHRR 1 at 9-10 (para 30); Costello-Roberts v UK (1993) 19 EHRR 112 at 133-134 (paras 30-32)). With reference to art 5, in determining the arbitrariness of any detention regard must be had to the legitimacy of the aim of detention and the proportionality of the detention in relation to that aim. So the significance of the appellants' complaints must be viewed in the context of their treatment as a whole. It is relevant to note, first of all, that each of the appellants was sentenced to a tariff term which reflected the judges' views of the bracket within which the term should fall. The appellants themselves may no doubt consider the term too long. The relatives of their respective victims may think it too short. But the appellants were not sentenced to an arbitrary, rule-of-thumb term of imprisonment. Those responsible did their best to match the respective terms to the particular facts and circumstances of each case. I accept that the appellants, while serving their tariff terms, could not be sure of release on their tariff expiry date. But they would probably be aware of the views of the trial judges. If they availed themselves of such courses as were on offer at their respective prisons and did nothing in prison or during home leaves to throw doubt on their ability to eschew acts of violence, they could confidently hope for favourable reports as the tariff expiry date approached. If their sentences were properly administered, reports would be prepared in sufficient time before the expiry date to permit the Parole Board to consider their cases and permit release on the tariff expiry date if the board so recommended. It appears that the procedure worked as it should in Ms Lichniak's case, confirming the trial judge's initial assessment which is strongly reinforced by additional material which was not before him. I doubt whether there is in truth a burden on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the board to consider all the available material and form a judgment. There is, inevitably, a balance to be struck between the interest of the individual and the interest of society, and I do not think it objectionable, in the case of someone who has once taken life with the intent necessary for murder, to prefer the latter in case of doubt. In any event, this is a defensible process."

[my emphasis]

41. Both Lord Bingham and Lord Hutton looked to the treatment of the appellants 'as a whole'; they looked to what in practice was the reason for the uncertainty inherent in the sentences and the consequences of it. In so doing, they rejected the contention that the element of uncertainty in the punishment being suffered by the appellants constituted a breach of the European Convention. I will in the next section look to the present treatment of the applicant 'as a whole' and consider in practice the degree of uncertainty that he is actually suffering.

The applicant's lack of certainty does not constitute cruel, inhuman, degrading or arbitrary punishment

42. As Lord Bingham said in Lichniak (paragraph 40 supra), treatment must attain a certain level of severity in order to constitute torture or inhuman or degrading treatment. That test has been affirmed by the Court of Final Appeal in Lau Cheong & Another v. HKSAR (2002) 5 HKCFAR 415 in respect of both art.28 of the Basic Law (treatment that is arbitrary; namely, capricious, unreasoned, without reasonable cause or manifestly disproportionate) and art.3 of the Bill of Rights (cruel, inhuman or degrading treatment). In my judgment, not to look to treatment 'as a whole' and in light of its 'degree of severity' would debase the important rights protected by art.28 of the Basic Law and art.3 of the Bill of Rights.

43. Having looked to the circumstances of the applicant's present detention, even if it is accepted that the uncertainty as to how much longer he will spend in prison in order to expiate the punitive element of his sentence does cause him a degree of anguish, I am satisfied that it cannot, on any rational viewpoint, be said to be sufficient to constitute the form of ill treatment alleged. I say so for the following reasons :

(a) The applicant's continued detention is subject to review by the Review Board, that body having the power in the absence of a minimum term to take into account the nature and circumstances of his offence.

(b) There is new legislation intended to determine a minimum term for the applicant by way of judicial process.

(c) Even with the determination of a minimum term, the duration of the sentence remains uncertain.

(a) The role of the Review Board

44. The Review Board has the statutory duty on a regular basis to review the sentences of persons serving long-term sentences. It has the power to recommend to the Chief Executive that an indeterminate sentence, such as detention at Executive discretion, be substituted with a determinate sentence. In respect of the applicant, if that power was exercised and agreed to by the Chief Executive, he would then know exactly how much longer, if at all, he would have to remain in prison.

45. If the Chief Executive refused such a recommendation, his refusal may be subject to challenge in the courts by way of judicial review.

46. The Review Board also has the power to order the conditional release of prisoners serving indeterminate sentences. A conditional release specifies how the prisoner will conduct his life outside of detention and, for example, will include directions as to where he will live and work. The scheme of conditional release is manifestly aimed at securing by sure and prudent means the reintegration of the prisoner into the community. Conditional release is not a remission of sentence nor a completion of it. S.27 of the Ordinance directs that any period of time during which a prisoner enjoys conditional release is taken to be part of his sentence. That being the case, if the applicant was granted conditional release by the Review Board, while removed from detention and reintegrated into the community, albeit subject to restrictions, he would still be completing his sentence, either indeterminate or determined.

47. The fact that the applicant is not at this time subject to a minimum term means that the Review Board is not restricted as to the scope of its options by any such period. It is free to look at his circumstances in the round including the nature and circumstances of his offence and after any periodic review, which may be the next one, to order his conditional release or to recommend to the Chief Executive that his sentence be determined.

48. The Review Board is an independent, professional body. As I observed in my judgment of 9 September 2002 :

" As for the composition of the Board, two members must be serving or former judges of the High Court who hold the positions of President and Deputy President. Of the other members (who shall be no more than 11 and no fewer than 8), they must include a psychiatrist, a psychologist, a barrister or solicitor, an educationalist, a business person and an experienced social worker. At least one of the members must, in addition, have expertise in the rehabilitation of offenders. The composition of the Board therefore ensures a broad range of relevant expertise.

The members may only be removed from office after an inquiry has determined that they have been guilty of misconduct, incompetence or of being absent without leave, or if the inquiry finds them to be physically or mentally incapacitated. The Board is independent of Government : see s. 5(3). It is not, therefore, part of the executive."

49. As I have said at the beginning of this judgment (paragraph 4 supra) the Review Board, in looking to each prisoner, must have primary regard to certain penological principles set out in s.8 of the Ordinance. In addition, however, the Review Board may take into account a broad range of matters listed in the relevant regulations. In Schedule 1 to these regulations, the following matters are listed :

"1. The nature of the offence.

2. The prisoner's criminal record.

3. Reports, if any, made by the trial judge in relation to the offence.

4. Any mitigating circumstances.

5. Remorse shown by the prisoner for the offence.

6. The prisoner's response to counseling and rehabilitative treatment.

7. The prisoner's age when the offence was committed.

8. The prisoner's rehabilitation prospects and employment prospects on release.

9. Sentences in other similar cases.

10. Public interest, including public safety and the likelihood of commission of the same or further offence.

11. The prisoner's psychological condition.

12. The prisoner's psychiatric condition.

13. The prisoner's conduct in prison.

14. ..."

50. As to the procedures of the Review Board, while a prisoner is not entitled of his own motion to seek a review, the Ordinance nevertheless sets down a regime of regular reviews. When the Review Board is to conduct a review the prisoner is entitled to be informed. He must receive copies of all relevant materials in a language he understands and may only be denied those materials if they are likely to jeopardize the safety of others or compromise prison security. The prisoner is entitled to make representations; this will normally be in writing but may, if permission is granted, be by way of oral representations. The Review Board is not bound by strict evidential rules and may take into account any matter it thinks appropriate.

51. In the circumstances, the striking down of the statutory provision in terms of which the Chief Executive determined the applicant's minimum term has not resulted in a void. As Mr Fung put it : the applicant is not in a position where 'the keys have been thrown away'. To the contrary, the evidence revealed that subsequent to my judgment of 9 September 2002 the Review Board conducted a review of the applicant's continued detention. The applicant took advantage of his statutory right to make written representations to the Review Board, submitting a letter written by himself and two supporting letters, one from a minister of religion, one from a solicitor. In December 2002 - some three months after my judgment of 9 September 2002 - the Review Board declined to alter the applicant's continued indeterminate detention, commenting in its report :

" On 27 September 2002, the Board reviewed the prisoner's sentence in accordance with the Long-term Prison Sentences Review Ordinance (Cap. 524). Prior to the review of his sentence, members noted the judgment of the High Court delivered on 9 September 2002 in respect of the judicial review launched earlier by the prisoner and another Executive discretion prisoner. During the review of his sentence, members noted the prisoner's performance and progress made so far whilst in prison as reported by the Prison Superintendent. Members also perused the written representations made by the prisoner himself, a former Prison Chaplain and his solicitor respectively. Members considered that the offence committed was very serious and the prisoner had not served the punitive part of his sentence. Having considered carefully all reports and documents that were available before the Board and all relevant factors in respect of his case, the Board decided not to make any recommendation in respect of his sentence at this stage."

52. I am told that a further review is set for December of this year in about four months time. The applicant will again be in a position to make submissions including submissions as to what should constitute the punitive element of his offence and such matters as the effect upon him personally of not knowing how much longer he must endure in detention in order to expiate the punitive element of his offence.

53. To summarise, while it is at present uncertain as to how much longer the applicant may have to remain in detention, he knows that this matter is by law under regular scrutiny by an independent, professional body tasked as one of its primary responsibilities to look to his rehabilitation and, through that rehabilitation, to his release.

(b) Forthcoming legislation

54. While the applicant may not at this time have a minimum term imposed upon him, he is aware of the fact that administrative steps have been taken to prepare new legislation to rectify the present omission. The applicant also knows that this new legislation in draft form will be presented to the legislature for consideration in the next few months.

55. On this basis, it cannot be said that there has been a persistent failure to put in place a lawful system to replace the earlier one struck down as offending the Basic Law.

(c) The determination of a minimum term will not determine the duration of the applicant's detention

56. As I have indicated earlier, the imposition of a minimum term will not fully determine the duration of the applicant's detention. That is because, upon the expiration of any minimum term, the Review Board must still take into account the fundamental matters of rehabilitation and on-going risk to society. Neither of those matters, in their resolution by the Board, can be assessed in advance with any degree of certainty. No doubt the imposition of a minimum term will give the applicant some better idea of how long, if he is an exemplary prisoner, he may expect to remain in detention but it will not constitute the defining yardstick that Mr Harris appeared to advocate.

57. During the course of his submissions, Mr Harris further appeared to suggest that, upon the expiration of a minimum term, it would only be legitimate to continue to detain a young offendor if he or she posed a risk to society. If that was his submission, I must reject it. In the United Kingdom, the Home Secretary may have set that down but Hong Kong has not done so. In Hong Kong, even if a prisoner no longer poses a threat to society, he may still be detained if it is deemed necessary to ensure his settled reintegration into society. In this regard, in my judgment of 9 September 2002 I said :

"In this jurisdiction, however, the concept of a minimum term governed by legislation carries with it no direction (nor indeed any implication) that, with the exception of continuing risk to the community, it will constitute the full term that a young offender must serve. To the contrary, repeating the words of Stock JA in HKSAR v Hui Chi Wai and Others (supra), 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.' "

58. I summarise by saying that, in my view, Hong Kong's statutory system for monitoring the duration of the applicant's detention aims to balance the legitimate requirement to punish a serious offence with the need to seek the applicant's rehabilitation while at the same time protecting the community. That system encompasses internationally recognised ideals. It cannot be said to be arbitrary. Nor, in my opinion, can it be said to even approach being cruel, inhuman or degrading treatment simply because, in order to achieve what is best for both the offendor and the community, it results in uncertainty as to the duration of detention.

Habeas corpus is not in any event the appropriate remedy

59. The writ of habeas corpus exists to examine the legality of a person's detention in custody. As was said by Parker CJ in In re Featherstone (1953) 37 Cr.App.R 146, at 147 :

" The court does not grant, and cannot grant, writs of habeas corpus to persons who are in execution, that is to say, persons who are serving sentences passed by courts of competent jurisdiction. Probably the only case in which the court would grant habeas corpus would be if it were satisfied that the prisoner was being held after the terms of the sentence passed on him had expired."

60. Despite what appears to be an extension of the scope of the writ in Canada, influenced by jurisprudence of the United States, other common law jurisdictions with which Hong Kong has strong jurisprudential links have resisted extending the writ to cover not only the legality of detention but the lawfulness of the conditions of that detention.

61. In the present case, Mr Harris accepted that the applicant was lawfully sentenced by a court of competent jurisdiction. On that basis, as that sentence still endures, it remains a lawful sentence and the applicant remains lawfully detained. Accordingly, in seeking a writ of habeas corpus, Mr Harris had to contend that the sentence, otherwise lawful, had become unlawful because of the conditions under which it was now being served. The identified condition which now rendered the sentence unlawful was that of uncertainty.

62. Mr Harris accepted that he was seeking to extend the scope of habeas corpus in Hong Kong law. To support his submissions, he looked to Canadian authority, in particular to R v. Gamble 45 CCC (3d) 204. I see no need to analyse Gamble in detail. It is sufficient, I think, to record that the ratio decidendi of the decision flowed very much from United States jurisprudence and the creation there of the concept of 'residual liberty'. In R v. Miller (1985) 23 CCC (3d) 97, Le Dain J, delivering the judgment of the Supreme Court of Canada, spoke of the concept as absorbed into Canadian jurisprudence in the following terms :

"The concept of a 'prison within a prison' is referred to by Sharpe, The Law of Habeas Corpus, p 149, where he speaks in favour of such an application of habeas corpus, and by Dickson J, as he then was, in Martineau v Matsqui Institution Disciplinary Board (No 2), (1979), 50 CCC (2d) 353, 106 DLR (3d) 385, [1980] 1 SCR 602, where, with reference to the decision of the disciplinary board which sentenced the inmate for a disciplinary offence to 15 days in the penitentiary's special corrections unit, he said at p 373 CCC, p 405 DLR, p 622 SCR :

' Moreover, the board's decision had the effect of depriving an individual of his liberty by committing him to a 'prison within a prison'. In these circumstances, elementary justice requires some procedural protection. The rule of law must run within penitentiary walls.'

This statement reflects the perception that a prisoner is not without some rights or residual liberty (see also Solosky v The Queen (1979), 50 CCC (2d) 495 at p 510, 105 DLR (3d) 745 at p 760, [1980] 1 SCR 821 at p 839) and that there may be significant degrees of deprivation of liberty within a penal institution. The same perception is reflected in the reasons for judgment of McEachern CJSC and Anderson JA in Cardinal and Oswald and Cory JA in the case at bar on this issue. In effect, a prisoner has the right not to be deprived unlawfully of the relative or residual liberty permitted to the general inmate population of an institution. Any significant deprivation of that liberty, such as that effected by confinement in a special handling unit, meets the first of the traditional requirements for habeas corpus, that it must be directed against a deprivation of liberty."

63. In England and Wales, the concept of 'residual liberty' and through that the extension of habeas corpus to examine conditions of incarceration, has been rejected. In R v. Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58, at 165, Lord Bridge said :

" I sympathise entirely with the view that the person lawfully held in custody who is subjected to intolerable conditions ought not to be left without a remedy against his custodian, but the proposition that the conditions of detention may render the detention itself unlawful raises formidable difficulties. If the proposition be sound, the corollary must be that when the conditions of detention deteriorate to the point of intolerability, the detainee is entitled immediately to go free.

...

The logical solution to the problem, I believe, is that if the conditions of an otherwise lawful detention are truly intolerable, the law ought to be capable of providing a remedy directly related to those conditions without characterising the fact of the detention itself as unlawful."

64. In Ireland, in Brennan v. Governor of Portlaoise Prison [1999] 1 ILRM 190, Budd J rejected the contention that a prisoner lawfully sentenced by a court of competent jurisdiction must be released on habeas corpus because 'some defect or illegality' attaches to his detention.

65. In Australia, in Prisoners A-XX v. New South Wales (1996) 38 NSWLR 622 (CA), a group of prisoners applied for a writ of habeas corpus in order to require the New South Wales prison authorities to issue condoms to HIV prisoners in order to prevent the spread of the virus. The court held that the concept of 'residual liberty' was not known to the law of Australia and that the denial of condoms to prisoners was not a condition of imprisonment that invalidated the legality of incarceration allowing for the issue of a writ of habeas corpus.

66. In A-XX v. New South Wales (supra), the applicants did not seek immediate release but instead sought a directory order from the court. It appears in the present case that in principle the same kind of remedy has been sought; namely, the assessment of a minimum term by the court rather than immediate release.

67. In 2001, in the High Court of New Zealand, Wild J held that it was not appropriate to expand the ambit of the writ of habeas corpus to include the concept of 'residual liberty'. Accordingly, a writ of habeas corpus had to be founded on an unlawful detention and was not available to a prisoner who sought to challenge the legality of the conditions of his otherwise lawful detention : see Bennett v. Superintendent, Rimutaka Prison [2001] 3 WLLR 803.

68. In the course of his judgment, Wild J gave a number of reasons why he did not think it appropriate to import into New Zealand law the extended scope of habeas corpus. In so far as his reasons are of general applicability, I adopt them in full.

69. On appeal, in upholding the judgment of Wild J, the New Zealand Court of Appeal held that the writ of habeas corpus was to be used only where it was sought to release a prisoner entirely from unlawful custody. When a challenge is made to the lawfulness of conditions of sentence, the Court followed the House of Lords, saying :

" In our view, the appropriate way in which sentenced prisoners can test the lawfulness of the conditions of their incarceration is by application for judicial review. In cases involving human rights the events which are impugned will be closely scrutinised (Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd [1998] NZAR 58 at p 66).

An application for judicial review does not require the leave of the Court. In a truly urgent case a hearing on interim relief can be arranged as speedily as on a habeas corpus application. [Bennett v. Superintendent Rimutaka Prison [2002] 1 WLLR 616, at 633]"

70. In my judgment, those observations of the New Zealand Court of Appeal are entirely apposite to the present case.

71. The authorities show that the explanation for the extension of the scope of habeas corpus in the United States and Canada is to be found to a material degree, although not entirely, in the jurisdictional problems thrown up by their federal systems. As Wild J commented in Bennett in his judgment at first instance (at 816) :

" I think Mr Butler is correct in submitting that the Supreme Court of Canada was powerfully influenced by a jurisdictional problem peculiar to Canada. Canadian federal legislation conferred on the Federal Court of Canada exclusive original jurisdiction to issue injunctive and prerogative writ relief against federal prison authorities. That deprived superior provincial Courts of jurisdiction to hear an application for judicial review against the actions of federal prison authorities. But the superior provincial Courts did have habeas corpus jurisdiction. Motivating the Court in taking a wide view of habeas corpus was its desire to facilitate full and effective provincial judicial review by the superior provincial Courts of the activities of federal penitentiaries."

72. Hong Kong is a unitary system and on a review of the authorities shown to me I can find no reason why in Hong Kong the writ of habeas corpus should be extended, as Mr Harris proposed, to cover the lawfulness of the conditions under which a sentence lawfully imposed by a court of competent jurisdiction must be endured. Our law embraces other procedures, equally effective in their practical management, to test the lawfulness of conditions of incarceration.

73. The 1992 judgment of the House of Lords in R v. Deputy Governor of Parkhurst Prison, ex parte Hague (supra) remains the law of Hong Kong.

74. Accordingly, I am satisfied that this Court has no jurisdiction to entertain this application, an application that has not been made by way of judicial review to alleviate supposedly intolerable conditions of imprisonment but has instead been made by way of habeas corpus on the basis that those conditions render the imprisonment itself unlawful.

Conclusions

75. For the reasons given in the body of this judgment, the application for the issue of a writ of habeas corpus is refused.

76. There will be an order nisi that costs of the application be paid to respondent, that order to be made final if not challenged within 30 days of the date of handing down this judgment.