TONG YU LAM v. THE LONG-TERM PRISON SENTENCES REVIEW BOARD AND ANOTHER

cacv 203/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 203 of 2006

(on appeal from hcal NO. 18 of 2005)

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J U D G M E N T

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Hon Ma CJHC:

1.  I agree with the judgment of Stock JA.

Hon Stock JA:

Background

2.  The applicant in the judicial review from which this an appeal was convicted on 24 September 1993 of the offence of murder and sentenced to life imprisonment.  In April 2003 he submitted a petition to the Chief Executive, by which he asked for his indeterminate sentence to be substituted by a determinate one.  His petition was rejected by the Chief Executive but the Chief Executive referred the case to the Long Term Prison Sentences Review Board (‘the Board’), constituted under the Long-term Prison Sentences Review Ordinance, Cap. 524 (‘the Ordinance’).

3.  By virtue of section 12 of the Ordinance, the Board was then duty-bound to review his sentence.  By reason of section 11 of that Ordinance, the Board was in any event required to review his sentence once he had served five years of his imprisonment and every two years thereafter.  In this case, the exercise was combined, which is to say that in October 2004 the Board conducted both the biennial review and the review requested by the Chief Executive.

4.  By letter dated 3 November 2004, the Board informed the applicant that it had decided that ‘no recommendation should be made on your sentence [and that] this recommendation has been accepted by the Chief Executive.’  More particularly, the letter said that although the applicant had been incarcerated for 11 years from the date of sentence, the crime he had committed was very serious and that: “The Board considers that you had not served the punitive part of the sentence.”

5.  An application was then made in judicial review proceedings to quash that decision.  That application for judicial review was dismissed for reasons provided in a judgment of 24 March 2006 delivered by Hartmann and Chung JJ.  This is an appeal from that judgment.

6.  By leave of this court the grounds of the application for review have been amended to enable the applicant to adjust his argument as a result of the decision of the Court of Final Appeal in Stock Exchange of Hong Kong v New World Television.[1]  The applicant now seeks a declaration that in so far as the Ordinance and the Criminal Procedure Ordinance, Cap. 221, make no provision for the setting of a punitive term in the case of mandatory life sentence prisoners, they are unconstitutional.  Because of the Stock Exchange decision, a decision that post-dates the judgment in the court below, the applicant cannot contend that such a function should be performed by the Board.  He says it must be performed by a judge.  This has not been done and the Board’s decision, for this and other reasons, is, therefore he asserts, flawed.

The operation of mandatory life terms

7.  In Lau Cheong & Another v HKSAR[2], the Court of Final Appeal held that the mandatory requirement of section 2 of the Offences Against the Person Ordinance, Cap. 212 to pass a sentence of life imprisonment on those convicted of the offence of murder was constitutionally permissible.  Subject only to a point to which I will later turn but which is of no relevance for immediate purposes, the applicant therefore accepts, as he must, that having been convicted of murder the imposition of a life sentence was lawful.  He argues, however, that it is the application or operation of a mandatory life sentence that is unlawful; an issue that he says was not considered in Lau Cheong.

8.  The argument is that a number of constitutional provisions applicable to Hong Kong require a determination in the case of mandatory life sentences of the punitive or retributive period of the sentence.  The constitutional provisions relied upon are art. 28 of the Basic Law as well as those articles in the International Covenant on Civil and Political Rights that are reflected in art. 5 of the Hong Kong Bill of Rights Ordinance (the prohibition against arbitrary detention or imprisonment); art. 3 (the prohibition against cruel, inhuman or degrading treatment or punishment); and art. 10 of that Ordinance (equality before the courts).  The equality issue goes to the point that those upon whom discretionary life sentences are imposed are the beneficiaries of minimum terms pronounced by the sentencing judge, terms that are directed at the retributive period of the overall sentence; whereas those who are subject to mandatory life terms are not.

9.  At the heart of the argument presented by Mr Harris SC on behalf of the applicant, is the hopelessness and lack of predictability occasioned by the present system whereby those who are the subject of mandatory life sentences have no idea from one year to the next when, if ever, they might be released; a despairing outlook not relieved by biennial reviews which, save when ultimately, if ever, successful, themselves result in the provision of no indications whatever.  It is said that the provisions of the Ordinance that enjoin the Board to have primary regard to questions of rehabilitation[3] become an entirely pointless injunction if a convicted man or woman is to be dangled in a state of perpetual uncertainty and gloom as to the prospect of release.  It is one thing to say that such is the unique gravity of the offence of murder that it may be acceptable to remove from judges the discretion whether or not to impose a term less than life imprisonment; but quite another to say that once the term has been imposed, there is no judicial consideration of what the minimum term, if any, is to be in order to reflect the individual circumstances of the offence and of the offender.

10.  The essence of the sentiment that Mr Harris conveys by his argument is found in a speech in the House of Lords by Lord Bingham in R v Lichniak[4], a case in which their Lordships considered whether the mandatory life sentence for murder was arbitrary or disproportionate and held that it was not.  That decision was made in the context of the system that prevails in the United Kingdom by which, in cases of discretionary as well as mandatory life terms, a convicted person is informed by the court of a tariff period, which is the punitive or retributive term which must be served before he is eligible for release; the emphasis is on the word ‘eligibility’ because there then follows a period during which, if it is considered that he constitutes a risk to the public, he may further be detained.  In Hong Kong that minimum term regime applies in the case of discretionary life sentences but not in the case of mandatory ones.  Lord Bingham drew comfort from the tariff system and in this context said:

“

If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the State for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate articles 3 and 5 of the European Convention on Human Rights as being arbitrary and disproportionate.  But Anderson, following earlier authority, makes plain that such is not the effect of the sentence.  It is a sentence partly punitive, partly preventative.  The punitive element is represented by the tariff term, imposed as punishment for the serious crime which the convicted murderer has committed.  The preventative element is represented by the power to continue to detain the convicted murderer in prison unless and until the Parole Board, an independent body, considers it safe to release him, and also by the power to recall to prison a convicted murderer who has been released if it is judged necessary to recall him for the protection of the public.  It is a sentence so characterised that the appellants must attack if their appeals to succeed.”[5]

11.  What prevails in Hong Kong, Mr Harris points out, is precisely the regime for mandatory sentences described by Lord Bingham as one that he would classify as arbitrary and disproportionate, namely, one in which a convicted murderer forfeits his liberty for the rest of his days to remain in custody until, if ever, the Chief Executive concludes that the public interest would better be served by his release than by his continued detention.

12.  The difficulty that stands in the applicant’s way is the decision in Lau Cheong.  Mr Harris is correct when he says that what the Court of Final Appeal was there addressing was the constitutionality of legislation that deprived judges of a discretion when sentencing those convicted of the offence of murder.  However, in order to progress in the challenge mounted by the judicial review he has necessarily then to show that what the Court of Final Appeal did not address was the question now raised, which is the operation or application of the sentence thus mandated and whether its operation or application was arbitrary or otherwise unconstitutional.

13.  It seems to me manifestly clear that when the Court of Final Appeal decided that the mandatory sentence was constitutionally permissible it did so having characterised the sentence.  Its approach was the same as that of Lord Bingham in Lichniak who analysed the legality of mandatory life sentences in the United Kingdom in the light of its characterization by the system there prevailing.  The Court of Final Appeal specifically noted the Board’s essential function “to give individual consideration to offenders”[6]; and in arriving at its conclusion said that:

“

The court ought also to give proper weight to the fact that it was part and parcel of the legislature's decision that a statutory regime for the individualised review of each sentence after it is mandatory imposition should be put in place.  It was on the basis of the Administration's assurances that the legislation necessary for such a scheme would be introduced that the mandatory life imprisonment provisions were passed into law.  That scheme is now embodied in the Review Ordinance.”[7]

and, further:

“

In accepting the legislative judgment, we give particular weight to the legislature's insistence on a statute-based regime for review by an independent board of all life sentences, with power to recommend conversion of such sentences to fixed terms and to direct conditional releases in appropriate cases.”[8]

14.  The Court of Final Appeal has determined that a sentence of life imprisonment imposed pursuant to the mandatory provisions of section 2 of the Offences Against the Person Ordinance, as characterised by the circumstances of its implementation in Hong Kong, and as compared with the effect of discretionary life terms, is not an arbitrary punishment, nor otherwise in conflict with constitutional requirements.  It must follow that this appeal which attacks the legality of the implementation regime, must fail.

Adequacy of reasons

15.  The second complaint is that the reasons provided by the Board for its 2004 decision were inadequate.

16.  We have seen that in its letter of 3 November 2004, the Board rejected the applicant’s representation, giving as its reason the fact that the crime that he had committed was very serious and ‘[t]he Board considered that you [ have ] not served the punitive part of the sentence.’  Mr Harris suggests that it was in the circumstances incumbent upon the Board to state what that punitive term was.  He pointed out also that this reason was but a mere repetition of precisely the same phrase provided in the case of two earlier reviews.

17.  The court below rejected this complaint saying[9] that although the Board ought “ideally [to] have used more exact language,” the Board was in effect saying no more than that, given the nature of the applicant’s criminal act, it was still too early to consider making a recommendation to the Chief Executive.

18.  I would not myself treat the Board’s use of language in the same way.  The Board is chaired by a judge and when it quite specifically chooses to make reference to non-completion of the punitive part of the sentence, one must assume that the term is used as it is normally understood by those who apply sentencing law.  If the Board had decided upon a punitive term it should, one would think – quite apart from any question of affording the affected person the right of representations in that regard – have given an indication of what that period was.  If, on the other hand, as is highly likely, it did not assess the punitive or retributive period, or if it proceeded on the basis that the punitive period was the entirety of the sentence, then it should not have used the phrase that it did.  Moreover, the fact that the self-same phrase was used on each previous occasion gives rise to an impression that reasons were insufficiently tailored to individual circumstances.

19.  If there had, since 2004, not taken place a further review then I would, for the reasons I have given, have been minded to quash the decision and remit the review to the Board for a fresh consideration in accordance with correct principle.  But the fact of the matter is that there was a subsequent review in September 2006 and the same error in the provision of reasons has not been repeated, and there is no point now in granting the relief sought on this ground.

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 a 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[10].

Oral representations

21.  Next, it is argued that the applicant ought to have been afforded an oral hearing before the Board.

22.  By reason of Section 12(5) of the Ordinance, a prisoner is entitled to make written representations to the Board in relation to matters relevant to a pending review and:

“	… may, if a regulation under this Ordinance provides or with the consent of the Board, appear before the Board, either personally or through a representative of the prisoner’s choice, to be heard and to make oral representations and adduce evidence to the Board with respect to those matters.”

23.  In this case, extensive written representations prepared by an eminent practitioner and member of the academic community were presented on behalf of the applicant for the 2004 review.  No request was made by the applicant or by anyone on his behalf to be heard orally.  The applicant says in an affirmation that he did not seek such permission “because I understood from other prisoners that permission is rarely if ever granted.”[11]

24.  It seems to me quite impossible for the applicant to mount a tenable argument in the circumstances that he ought to have been present at the hearing of the review, when he knew full well that was open to him to make a request to that end and failed to do so.  We were told in the course of this appeal that the Board has never held an oral hearing.  How that comes to be so – and whether there is anything in the suggestion by the applicant that requests have in the past been refused – we are not in a position to say.  But it is not to the point, because it was open to the applicant to make his request.  Had he done so and had the request been refused, the court would, pursuant to a valid challenge, examine the refusal and the grounds for the refusal and take matters from there.  But this case has never reached that stage. 

25.  Then Mr Harris contends that an oral hearing is automatically required in all such cases; this because of the grave issues at stake.  It is difficult to see how he gets home in the light of the statutory provisions but even putting them aside for the moment, the right to an oral hearing is a contextual question and in the present context one can see that such a right might well arise where, for example, there was factual issue in dispute which was material to the Board’s assessment “and which [could not] fairly be resolved without hearing oral evidence”: R (Smith) v Parole Board[12]; but there will be a high proportion of cases where an oral hearing will serve no useful purpose to the prisoner at all and where such a requirement would quite unnecessarily overburden the work of the Board to the detriment of prisoners whose cases await determination.

Majority verdicts and retrospectivity

26.  The petition to the Chief Executive, subsequently forwarded to the Board, incorporated a carefully reasoned submission on a point of law which it is now said the Board failed, and continues to fail, to take into account.

27.  The point of law is this.  The offence in this case was committed in 1992.  The trial took place and the applicant was convicted in September 1993.  He was convicted by a majority of 6-1.  In between the date of the offence and the date of trial and conviction there was enacted, in April 1993, the Crimes (Amendment) Ordinance the effect of which was to repeal the death penalty for the offence of murder and to permit a majority verdict in murder cases.  The argument is that the 2003 Amendment was, in the applicant’s case, given retrospective effect because at the date he committed the killing the law did not permit a majority verdict in murder cases, and that to accord retrospective effect to the provision was unlawful because the amending statute did not provide for retrospective operation.

28.  Accordingly, says the applicant, the court should grant a declaration that in reviewing the sentence of the applicant the Board is required to take into account the fact, so it is put, that “the Applicant’s conviction was nevertheless unsatisfactory in that it was in breach of article 12 of the Hong Kong Bill of Rights and/or of the common law rule that no statute shall be construed to have retrospective operation”,[13] save where such a construction clearly appears from the statutory words used or arises by necessary implication.

29.  The applicant’s appeal against conviction was dismissed by the Court of Appeal on 17 June 1994, but this particular point was not taken on that appeal.

30.  The course that we are invited to adopt is an odd one.  The applicant is either seeking to upset the conviction or he is not.  If he intends, despite the fact that his appeal against conviction was dismissed in 2004, to reopen the question to an end that has legal effect, then the proper forum for such an attempt is the court and not the Board.  To suggest, as seems at one stage to have been implied in argument, that it would be appropriate to canvass these issues before the Board for it to determine the issue, is to ask the Board to perform a function that is not the Board’s to perform and is in any event an attempt, in its effect, to circumvent the curial route, which is the only proper route for such questions.  It is also to open the floodgate for the suggested unreliability of convictions in all long-term imprisonment cases to be paraded before the Board for its determination: points of law; fresh exculpatory evidence; and even, no doubt, suggestions that adverse findings by appellate courts were per incuriam.  The argument does not withstand scrutiny.  Mr Coleman SC is correct, in my view, that the review function of the Board is predicated on a valid conviction and on a valid sentence.

31.  In the course of the hearing before us, the point was made by the court that the proper avenue for an attempted challenge in circumstances such as those now put forward would be an application to the Chief Executive for referral to the Court under section 83P of the Criminal Procedure Ordinance.  That was not to encourage the applicant to take that course: merely toemphasise that the route suggested by the applicant for redress of his grievance was not the Board.  In that context, our attention was drawn to the fact that in his petition to the Chief Executive the applicant drew attention to the Chief Executive’s power to refer the case to the Court of Appeal under section 83P.  But the reference to that provision was immediately followed by the following statement:

“	The latter option [referral under section 83P] is undesirable as the petitioner does not seek to challenge his conviction.  He admitted the killing and accepted that he deserved punishment.  All he wants to be told how long he has served in prison.”[14]

32.  It is, I think, touching upon the bizarre, in the light of that statement, to seek the particular relief to which this part of the application was addressed.  Mr Harris asks that this court nonetheless to provide something in the nature of an advisory opinion on the point.  It is not for the court to provide advisory opinions.  If a challenge to the conviction were properly raised, it would be for a court in the exercise of its criminal jurisdiction, once properly seized of such an issue, to determine the propriety or otherwise of the conviction and, were it to find in the applicant’s favour, set that conviction aside.  The unsatisfactory nature of the invitation that is placed before us is illustrated by contemplating what would happen were this court to address the issue and make a finding in favour of the applicant in the face of a conviction which must nevertheless stand.  What then would the Board do?

33.  All this would in any event appear to be somewhat academic given the decision of this court, differently constituted, in R v Lai Hon Man[15] where precisely the same point was taken and rejected.  Arguments were presented to us about the correctness of that decision, but for me to engage those arguments would be to enter upon the very exercise which I have said is not an appropriate one for this court.  

Conclusion

34.  For the reasons provided, I would dismiss this appeal.

Hon Suffiad J:

35.  I agree.

Hon Ma CJHC:

36.  Accordingly, the appeal is dismissed.  Given our view in relation to the issue of reasons (para 19 above) we are of the opinion that there should be no order as to costs, save that the applicant’s costs should be taxed in accordance with the Legal Aid Regulations.  There will be a costs order nisi in those terms.

[1] [2006] 2 HKLRD 518.

[2] (2002) 5 HKCFAR 415.

[3] section 8.

[4] [2003] 1 AC 903.

[5] at 909.

[6] at [94].

[7] at [109].

[8] at [125].

[9] at [80].

[10] section 15(1)(a)(ii).

[11] 20^th January 2006, para 3.

[12] [2004] 1 W of R 421 at 435.

[13] Re-Amended Notice of Application, para (19).

[14] Petition para 47.

[15] [1994] 2 HKC 210.