HKSAR v. LAI HUNG WAI

HCMP2208/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO.2208 OF 2004

(on application from HCCC No.264 of 1989)

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J U D G M E N T

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Background

1. The respondent Lai Hung Wai 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.  On 28 November 1989 he was sentenced by Hooper J to be detained at Her Majesty’s pleasure in accordance with the then section 70 of the Criminal Procedure Ordinance (CPO), Cap.221.  By its very nature the sentence is of an indeterminate term.  By the end of November 2004, the respondent would have been in prison for some 15 years.  This figure does not take into consideration the period he spent in detention pending his trial.  At the time of his conviction, he was aged 16 year 10 months. 

2. The present proceedings arise from an application by the Secretary for Justice pursuant to section 67C(1) of the CPO for determination of a minimum term of imprisonment which the respondent must serve for the offence.

3. In 1993, section 70 of the CPO was repealed.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. 

4. 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 years 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.

5. 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 years 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.

6. 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.

7. Section 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.  

8. 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. 

9. In 2002, the respondent applied to the Court of First Instance to challenge the constitutional validity of the Chief Executive’s power under section 65C.  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.”

10. 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

11. 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.

12. The respondent belongs to the last category of prisoners.  As of this date, there are 10 such prisoners.

13. 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. 

14. The key operative provisions can be found at section 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.”

15. 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.

16. 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.

17. 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.”

18. 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 senior counsel 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 section 67C(4)(a) and (b)

19. 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. 

20. 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.”

21. 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.

22. 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.  

23. 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.

24. 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.  

25. 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 if the respondent was sentenced to a fixed term, a minimum term would not have been required at all.

26. 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.

27. 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.

28. 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. 

The appropriate fix-term

29. Having decided what I consider to be the proper approach, I would now proceed to consider what is the appropriate fixed-term sentence for the respondent.  The facts of the case was summed-up by Sir Derek Cons, VP when he delivered the judgment of the Court of Appeal :

“The general picture of the material events which the jury would have drawn from several witnesses, was that two groups of young people met in a noodle shop in the early hours of one morning in June last year.  There were seven in one group, including the deceased and two girls; and four in the other, including the Defendant and his friend, Ah Ming.  These two had been drinking beer for some time previously in other parts of Hong Kong.  There was an altercation between the two groups, following the usual accusations of staring, and the deceased became abusive to the Defendant.  Another of the deceased’s group, referred to as ‘the fat boy’ broke a bottle of chili and challenged the Defendant with it.  The eldest of the party, a 19-year-old, appears to have been able to smooth matters over and the Defendant’s party left.

The Defendant and Ah Ming went off to Chai Wan in a taxi.  Some 15 minutes later they returned, ostensibly to collect a bunch of keys that had been left behind in the noodle shop.  Meanwhile the other party had also left the noodle shop, the fat boy going home to change his shirt which had been covered with the chili.  They then formed the intention to seek out, if possible, the Defendant’s group.  He came across the Defendant and Ah Ming somewhere near a 7-Eleven Convenience Shop.

We then came to the more particular picture which the jury must have drawn.  Without going into minute details it is sufficient to say that there were some efforts at mediation between the groups, which failed, and then the Defendant who by that stage was a little way apart form the group, called out to the deceased to come up to him.  The deceased did so.  After some time, when there is no evidence to what occurred, the defendant was seen to stab at the deceased with a knife causing injuries from which he subsequently died.  The defendant did not give evidence himself, nor did he call any witnesses.”

30. In assessing the appropriate fixed-term, I have attempted to group what I considered to be factors of relevance into three groups.  The first group consisted of factors that existed at the time of the offence up to the time of the sentence.  The second group comprised materials that came into existence after the respondent was detained.  The last group being considerations which are relevant to the continued rehabilitation of the respondent should he be discharged.

31. The offence of murder covers a wide spectrum of gravity.  It can be committed without the offender having the intention to kill when an intention to inflict grievous bodily harm resulting in death being sufficient.  The degree of gravity may not have any significant impact when the only sentence available to the court is a mandatory life sentence.  However, when one considers what the appropriate fixed term should be, the circumstances surrounding the incident become highly relevant. 

32. From the summing-up of Hooper J, it is apparent that the respondent had been drinking and was under the influence of alcohol.  Another group of persons, of which the deceased was one of them, came into a noodle shop where the respondent was having a meal and immediately began provocative and hostile behaviour directed at the respondent’s group.  Although the issue of self-defence was withdrawn from the jury, nevertheless it remained an undisputed fact in the course of the trial.  The effect of slight intoxication on a youngster of the respondent’s age is also relevant and can be considered in favour of the respondent in the course of this exercise.  Having attacked and killed the deceased, the respondent fled from the scene but he gave himself up to the police two weeks later.  The respondent offered to plead guilty to manslaughter but was rejected by the prosecution.  At the time of the offence, the respondent had a clear record and it is common ground that there was no evidence that he benefited from the killing of the deceased.  This case, I can confidently say, come within the more lenient bracket of murders in terms of gravity. 

33. Subsequent to his incarceration, the relevant material placed before me show that the defendant had shown true remorse in respect of the offence he had committed.  There are references by prison visitors, social workers, the psychiatrist Doctor Sylvia Chan and also by the submissions by the respondent himself.  In the early years of his detention, the defendant had made significant progress in his academic achievement.  This is evidenced by the results he obtained in open examinations.  He had become a role model for prisoners and this was evidenced by newspaper interviews and was reflected in his prison reports.  I note the fact that apart from one trivial incident, the respondent had been a model prisoner and he has a good disciplinary record.  He has been graded as a category “A” prisoner which is the highest level of good behaviour.  Apart from academic achievement, the respondent had enrolled in the Association of Chartered Certified Accountants of the United Kingdom as a student member.  Over the past several years, the respondent had participated in Christian and Buddhist activities. 

34. My overall impression is that the defendant’s attitude towards his incarceration and the efforts he had spent to rehabilitate himself is highly impressive. 

35. Based on the available material before me, I am of the view that the respondent is now a completely rehabilitated person.  There is an abundance of material before me to show that his family members are supportive.  They have realistic plans for him in the event when he is discharged.  While in prison, the respondent came to know his present fiancé who is a clerk in a shipping company.  They have plans to get married when the respondent is discharged.  This would no doubt have a stabilizing effect on the future social reintegration of the respondent. 

36. In all the circumstances, I find that the defendant will no longer pose a threat to the society in the event of his release.  Any further period of detention is not in the interest of the respondent in the light of the fact that the 15 years he spent in prison had been sufficient punishment for what he did back in 1989. 

Conclusion

37. For the reasons as I have stated earlier, I would exercise the powers vested in me pursuant to s.67C(4)(b) of the CPO and I order that the sentence passed by Hopper J on the respondent on 28 November 1989 be quashed and I would substitute that sentence by a sentence of imprisonment of 23 years.