A v. THE CHIEF EXECUTIVE OF HKSAR AND OTHERS

HCAL 33/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 33 OF 2010

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J U D G M E N T

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Joint Judgment of the court:

A.   INTRODUCTION

1. The applicant was convicted of murder and sentenced to mandatory life imprisonment in February 1995.  His appeal against conviction was dismissed by the Court of Appeal in February 1997.

2. In 2010, the Long‑Term Prison Sentences Review Board (“the Board”) refused to recommend to the Chief Executive to convert his mandatory life sentence into a determinate one.  This is the applicant’s judicial review application seeking to quash the Board’s said decision (“the Decision”) on the ground that it failed to give adequate reasons[1].

3. Although joined as a party, the applicant before the hearing confirmed that he would no longer pursue his application against the 1^st and 2^nd respondents.  By consent, the application against these respondents was dismissed with costs.  The present hearing concerns therefore only the Board as the 3^rd respondent.

B.   BACKGROUND

4. In the early hours on a day in 1993, the applicant had a quarrel with a street sleeper (“the deceased”) about taking a packet of biscuits without the deceased’s permission.  Shortly after the quarrel, the applicant came back with two other men.  Together they chopped the deceased to dead with long knives.  The deceased was found to have suffered more than 15 chop wounds, some of these chop wounds reached the bone where pieces of bone had been chopped off and metal fragments had been left behind.

5. In February 1995, the applicant was unanimously found guilty by jury and he was sentenced to life imprisonment.

6. Under section 11(2) of the Long‑Term Prison Sentences Review Ordinance, Cap 524 (“the Ordinance”), the Board is required to review the sentence of a prisoner serving a mandatory life sentence once he has served five years of his imprisonment and every two years thereafter.

7. Between 2000 and 2008, the Board conducted five regular reviews and one special review referred by the Chief Executive in respect of the applicant’s case.  In each of these reviews, the Board decided not to make any recommendation to the Chief Executive to convert the applicant’s indeterminate sentence to a determinate one.

8. In the last review in 2010, the Board again decided not to make any recommendation to the Chief Executive (ie, the Decision).  The Decision was conveyed to the applicant in the Board’s letter dated 16 April 2010.

9. It is this decision that becomes the subject matter of the present challenge.

C.   THIS JUDICIAL REVIEW

C1.  The ground of challenge

10. As mentioned above, the applicant’s judicial review against the Decision is premised on the ground of lack of adequate reasons.

11. The Board explained the Decision in the letter as follows:

“…

During the review of your sentence, the Board considered your circumstances and performance in prison, and perused all the relevant reports, documents, written representations submitted by you, and letters submitted by other parties. The Board noted that you had served fifteen years and one month in prison (counting from the date of sentence) and performed well in prison. However, you had committed a very serious crime. Having considered carefully all the relevant materials and matters, and having regard to the nature of your criminal act, the Board considered that the period you had served was insufficient in all the circumstances. Therefore, the Board decided not to recommend to the Chief Executive to convert your sentence to a determinate one. In relation to your assertion that you had provided assistance to the Police, the Police indicated that they had no objection for the Board to impose a determinate sentence on you, provided that such determinate sentence reflects the gravity of your crime. The Board will take into account this factor in your future reviews.

…” (emphasis added)

12. The applicant’s major complaints against these explanations can be summarised as follows:

(1)  The Board’s reasons are no more than a recitation of the statutory guidelines as prescribed in section 8(c) of the Ordinance (“Complaint 1”).

(2)  The Board failed to take into account the assistance rendered to the police by the applicant in another prosecution (“Complaint 2”).

(3)  The Board failed to take into account the applicant’s good behaviour in prison (“Complaint 3”).

(4)  The Board failed to inform the applicant under what circumstances his application would be reviewed more favourably (“Complaint 4”).

(5)  The Board adopted similar phraseology in all successive reviews and failed to provide sufficient reasons tailoring to the changing circumstances of the applicant’s case (“Complaint 5”).

13. In support of the above complaints, Ms Gladys Li SC (together with Mr Dennis Kwok) for the applicant submitted that whether the Board had given adequate reasons must be viewed against the context that the liberty of a subject is a stake.  In such context, the Board (Ms Li further said) has a “heightened” duty to give fuller reasons.  Counsel relied on Art 6(3) of the Hong Kong Bill of Rights (“BOR”) to support her contention.

14. Further, counsel argued at the hearing that the Board’s principal reason that the applicant had not yet served a sufficient period of sentence cannot amount to a good or adequate reason to support the Decision.  This is so because, if the Board did not think the period then already served by the applicant was sufficient, as a matter of simple logic, the Board must have in its mind what was the length of a sufficient period of sentence that the applicant needed to serve in all the circumstances.  In other words, the Board should by then already have a definite sentence period that it considered to be appropriate for the applicant, which was what the applicant was asking for in the review.  Therefore, the reason that the applicant had not served a sufficient period of sentence cannot by itself be an adequate or good reason to refuse recommending the applicant for a determinate sentence.

C2.  The relevant legal principles

15. In Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997‑1998) 1 HKCFAR 279, Chief Justice Li laid down the following principles as to the requirements to give reasons by a decision maker:

(1)  Where there is a duty to give reasons, it must be discharged by giving adequate reasons.  What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question.

(2)  The reasons given should show that the tribunal has addressed the substantial issues before it and show why the tribunal has come to its decision.  There may not be any need, however, to address every single issue.  But the reasons should show that the issues that arise for serious consideration have been considered.

(3)  In some instances, the duty to give reasons could be discharged by describing the contents without much more.  Apart from such cases, a decision which merely recites the statutory guidelines would not normally be adequate.  Such statements would in effect assert conclusions and would not reveal why the tribunal has come to such conclusions.

(4)  The reasons may not require great elaboration and they may be brief.  It is only when they are defective in substance that they should be considered inadequate.  Ultimately, what are adequate reasons in the circumstances of a particular case has to be approached sensibly.

16. Bearing these principles in mind, we now turn to look at the complaints under the challenge.

C3.   Analysis

C3.1  A “heightened” duty to give fuller reasons

17. The Board in this case accepts that it has a duty to give reasons.  As such, the real issues arising from the complaints are two folds (i) whether the Board was simply reciting statutory guidelines; (ii) if not, were the reasons given amounted to adequate reasons?

18. Before dealing with the applicant’s substantive grounds of the challenge, we should perhaps first deal with Ms Li’s submissions on the Board’s “heightened” duty to give reasons.

19. In our view, there is nothing to support the contention that there is a “heightened” duty to give reasons on the Board.  We accept Mr Fung’s submissions for the Board that it is difficult to understand what is meant by a “heightened” duty to give adequate reasons. Either a tribunal has a duty to give reasons, or it does not.  Once it is accepted that there is a duty to give reasons (as in the present case), the only question is whether that duty has been discharged by giving adequate reasons in accordance with the principles laid down in Oriental Daily as summarised above.

20. The reliance on Art 6(3) of the BOR (embodied in s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383)) does not assist the contention.  Art 6(3) provides:

“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.”

21. Art 6(3) is thus concerned with the treatment of prisoners in the Hong Kong penitentiary system.  As rightly submitted by Mr Fung SC, it is difficult to see how this Article would somehow “heighten” the Board’s duty to give “fuller” reasons in its decision.  This is further underlined by the fact that the Board is not a servant or agent of the Government (s 5(3) of the Ordinance).

22. We therefore do not accept that there is a heightened duty on the Board to give fuller reasons.

23. However, as the learned Chief Justice Li has said in Oriental Daily, as a matter of principle, it is correct to say that whether a decision maker has given adequate reasons in a decision must be viewed in the proper context of that decision.  Thus, in determining whether the Board has given adequate reasons in the Decision, the court would look at the context that a person’s liberty is at stake.

C3.2  Complaints 1 to 3

24. Complaints 1 to 3 can be conveniently looked at together.  Under these complaints, the applicant’s challenge is effectively that the Board’s reasons (as quoted above) amount only to reciting s 8(c) of the Ordinance and did not provide for its consideration of matters such as the applicant’s assistance rendered to the police and his good behaviour in prison. The applicant is therefore unable (as contended) to understand from the reasons how the Board had taken into account these personal favourable matters of the applicant (which are not disputed) but still refused to recommend converting his life sentence into a determinate one.

25. The applicant’s contentions demand a closer look at s 8(c) of the Ordinance.

26. Section 8 of the Ordinance provides that, when reviewing sentences, the Board “must have primary regard” to the following principles:

“(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.”

27. By Regulation 2 of the Long‑Term Prison Sentences Review Regulation, the Board may take into account the following matters (listed under Schedule 1 thereto) in addition to any other matters the Board considers relevant:

“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 counselling 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. The prisoner’s state of health.

15. The prisoner’s age.

16. The length of time the prisoner has served in prison.

17. The minimum term of the prisoner’s sentence (if applicable).

18. Any assistance provided by the prisoner to law enforcement agencies.”

28. On a proper and objective reading of s 8(c) of the Ordinance, the Board should have primary regard to “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”, it seems clear to us that under this, the Board in performing its function is first to consider whether (having taking into account all the circumstances of the case before it) the applicant has already served a sufficient period of sentence which would justify (ie, “warrant”) the “consideration” of whether the prisoner should be released early from his detention.  What it means is that this “sufficient” period of sentence is one which would “trigger” the Board to consider whether, and if so when and how, the prisoner should be released early.  When determining whether such a sufficient period is reached, the Board should look at all the circumstances of the applicant, but give particular importance to the nature of the offence convicted.

29. In other words, the “sufficient” period envisaged under s 8(c) is not the period that would justify the applicant to be released.  It is only the threshold (or triggering) period that would justify or entitle the applicant to be “considered” for early release.  If that threshold period has not even been reached, the Board shall not even consider whether he could be released early.  It is only after this period has been reached that the Board would consider, whether and, if so, what length of sentence the applicant shall further serve before he could be released.

30. It is clear from the wordings of the Decision (quoted above) that the Board’s primary reasons for not making a recommendation to the Chief Executive are again two folds:

(1) the offence that the applicant committed was very serious; and

(2) the period that the applicant had served was insufficient in all the circumstances.

31. It cannot be disputed that murder is one of the most serious crimes in our criminal law books.  Furthermore, it can be seen from the background that the killing committed by the applicant was indeed a very gruesome one.  It was a premeditated group attack on an unarmed civilian. Very serious bodily harms were inflicted.  More importantly, the applicant was the mastermind behind the killing.  In our view, one must never forget, absent in this kind of review hearing is the victim’s view.

32. Thus, on a proper and objective reading of the reasons, it is obvious that what they mean are that, even after taking into account of the applicant’s good behaviour and assistance that had been rendered to the police, in light of the very serious nature and circumstances of his offence, he had not served a sufficient length of sentence to justify a consideration of an early release.

33. It is therefore not surprising that the Board stressed forthright in the Decision about the seriousness of the offence and the nature of the applicant’s criminal act.

34. In our view, these are adequate reasons of the Decision which satisfy the principles in Oriental Daily:

(1) They set out the issue that the Board was tasked to decide under s 8(c) of the Ordinance: ie, whether having taken into consideration of all the circumstance of the applicant, he had served a sufficient period of sentence warranting the consideration of an early release.

(2) They set out what were the personal factors that the Board had taken into consideration, ie, the length of imprisonment the applicant had served (15 years and 1 month), his good behaviour inside the prison, his assistance rendered to the law enforcement agency, and the nature and circumstance of his offence.  These are all proper factors that the Board was entitled to consider under the Ordinance.

(3) They show that the Board gave particular emphasis and weight to the very serious nature and circumstances of the offence that the applicant had committed.  The Board was required by s 8(c) of the Ordinance to do so.

(4) It is objectively discernable from the reasons that, in light of this particular serious nature and circumstances of the offence, notwithstanding the other factors, the Board did not consider that the applicant had served a sufficient “threshold” period of sentence that would warrant the consideration of an early release.

35. In the circumstances, there is no difficulty for the applicant to understand that the reasons for the Decision are that the offence he had committed is such a serious one that, notwithstanding his good behaviour and his other personal factors, the serving of 15 years of sentence was not sufficient enough to warrant the consideration of an early release.

36. As we mentioned above, Ms Li then seeks to challenge the Decision for lack of adequate reasons by posing the rhetoric question that, if the Board said that the period of sentence served was insufficient, as a matter of logic, it must have in it its mind what a sufficient period was and should therefore have recommended a determinate sentence. In refusing to so recommend, it must mean (Ms Li further says) this reason cannot be a reasonable (and thus also not an adequate) one.

37. We are unable to accept the submissions.

38. As pointed out above, under s 8(c) of the Ordinance, the “sufficient” period of sentence that the Board is to consider in all the circumstances is only the threshold (or triggering) period that would justify or entitle the applicant to be “considered” for early release.  It is not the period that would entitle the release of the applicant.

39. Once understood that way, it is clear that Ms Li’s simple logic contention cannot stand.  What the Board had decided by those reasons is that the applicant has not yet reached that threshold period.  It is only after the applicant has reached this threshold period that he should then be “considered” for early release.  And it is only by then that the Board should consider what further length of period he should be recommended to serve before he can be released after taking into account of all the factors as set out under s 8 of the Ordinance and Schedule 1 of the Regulations then prevailing.  As such, there is no question that the Board must by the time of the Decision have in its mind a definite period of sentence that the applicant needs to serve before he could be released.

40. For these reasons, Complaints 1 to 3 must be rejected.

C3.3  Complaint 4

41. Under this, it is the applicant’s contention that, even in rejecting the review, the Board should give an indication on under what circumstances his application would be reviewed more favourably, including (as expanded by Ms Li at the hearing) how long the convicted person should be required to serve to meet the punitive part of the sentence.

42. This contention must be examined against the nature of the Board’s functions and role.

43. Although the chairman and deputy chairman of the Board are judges from the High Court, the Board in reviewing each prisoner’s case is not exercising any judicial function on sentencing.  Instead the Board is only exercising an executive function.  This is pointed out by Stock JA in Tong Yu Lam v The Long Term Prison Sentences Board[2]at paragraph 20:

“It is said that in any event the Board should in all reviews of mandatory life cases provide an indication of how long the convicted person should be required to serve to meet the punitive part of the sentence. This, with respect, is not logical. It is accepted that the determination of the punitive part of a sentence – if in mandatory life cases that were to be required – is a judicial function which it would not be for the Board to perform. That being so, it would be odd for the Board to take upon itself the function of giving some broad and non-judicially determined intimation tied to the concept of a punitive period. Be that as it may, as matters presently stand, the fact is that the Board’s function is a step in the exercise of executive clemency where the punitive period is treated as the entire term of the sentence; and it is not in those circumstances appropriate for the Board to be demarcating some lesser period as the punitive period, save only to the extent that such a determination may be said to be implied where it recommends the substitution of a determinate sentence.” (emphasis added)

44. The Board which is only exercising an executive but not a judicial function is further confirmed by the Court of Final Appeal in Tong Yu Lam.  In refusing leave to appeal, Chief Justice Li said[3]:

“… the sentence which was upheld is the sentence as traditionally imposed, that is, an indefinite sentence of imprisonment for life subject to regular statutory reviews by the Long-term Prison Sentences Review Board and to possible release by executive decision.” (our emphasis)

45. Viewed against this executive function of the Board, the Court of Appeal[4] and Court of Final Appeal[5] in Tong Yu Lam have firmly rejected the argument that the Board should in its review of mandatory life cases give an indication as to how long a prisoner should serve to meet the punitive part of the sentence.

46. We further repeat our observations at paragraphs 38 and 39 above.

47. Complaint 4 therefore has no merits and should also be rejected.

C3.4  Complaint 5

48. This can be dealt with quickly.  The complaint under this ground is that the Board has been using similar words and phrases in refusing the applicant’s reviews throughout the years.  That shows that the Board had adopted a pro forma type of “reasons” in its decisions and had not taken into its consideration the changing circumstances and factors relating to the applicant.  This underlies the contention that the reasons in the Decision cannot amount to adequate reasons.

49. In light of our above reasons in rejecting complaints 1 to 4, there is also no substance in this ground.  Effectively, what the Board had stated throughout was that it was premature to consider the applicant’s early release as he had not served the sufficient period of sentence to warrant such consideration.  Given that that was the reason, it is therefore not surprising to see that the words and phrases used by the Board were more or less the same.

50. Further and in any event, having read the previous rejection letters, although the primary reason for refusing the review is the same as the Decision, the Board did make references in those letters allowing for the change in the applicant’s personal circumstances over the period, whether it was the length of the sentence that the applicant had served, or his institutional performance, as well as in the use of language[6].

51. It is therefore not entirely correct to say that these letters read together with the Decision show that the Board had not taken into account the changing personal circumstances of the applicant.

52. We therefore also do not accept Complaint 5.

C3.5  The Board’s fall-back position

53. At the hearing, the Board has advanced a fall-back argument if the court accepts that the Decision lacks adequate reasons.  The argument runs as follows.

54. On 12 April 2012, the Board conducted a further review under s 11 of the Ordinance.  It has again decided not to make a recommendation to the Chief Executive to convert the applicant’s indeterminate sentence to a determinate one on the ground that the sentence already served by him was still insufficient.  However, the Board indicated that it would request a special report from the Correctional Services Department at the next review in the first quarter of 2014 (“the 2012 Decision”).

55. Mr Fung says in light of the 2012 Decision, there is no point in quashing the Decision (even if held to be lacking in adequate reasons) and remitting it to the Board for reconsideration, as the matter has in fact been considered afresh already.  This is particularly so as the applicant has not challenged the 2012 Decision by way of judicial review. Given that relief in judicial review is discretionary, and given that it would be academic now to remit the Decision for reconsideration as sought, the court should refuse this application.

56. Given our above conclusion in rejecting all the grounds in this judicial review, it is unnecessary and inappropriate for us to decide on this fall-back argument.

D.   CONCLUSION

57. For the above reasons, the applicant fails in his grounds of judicial review.  The application should be dismissed.

58. There are no reasons why costs should not follow the event.  We therefore also make an order nisi that costs of the application be to the Board to be taxed if not agreed.  The applicant’s own costs be taxed in accordance with legal aid regulations, with certificate for two counsel.  This order shall become absolute 14 days from today, unless any of the parties applies to vary it by summons.