LAI HIN CHEONG v. LONG-TERM PRISON SENTENCES REVIEW BOARD

HCAL 57/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 57 OF 2008

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J U D G M E N T

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Hon Reyes J:

I.  INTRODUCTION

1.  Mr. Lai was born in Hong Kong in 1961.  He is a Hong Kong permanent resident.  In 1983 the Thai Court sentenced Mr. Lai on 2 counts of drug trafficking to serve 25 years’ imprisonment and life imprisonment consecutively.

2.  The first count related to the trafficking of 210g of heroin.  On this, Mr. Lai had pleaded guilty.  The second count related to the trafficking of 800g of heroin.  On this, Mr. Lai had pleaded not guilty.  The 800g had been discovered after the 210g which were the subject matter of the first count.  But both counts related to drug trafficking committed at the same time and place.

3.  Mr. Lai served 133 months of his sentence in Thailand.  In February 1994 he returned to Hong Kong to serve the remainder of his sentence in accordance with an Agreement between the United Kingdom (then also acting on behalf of the Hong Kong Government) and Thailand on the “Transfer of Offenders and Co-operation in the Enforcement of Penal Sentences”.  Mr. Lai has been in prison here ever since.

4.  Over the years, as a result of a series of amnesties granted by the King of Thailand, Mr. Lai’s Thai sentences have been reduced.  The sentences currently stand at 12½ years and 24⅓ years respectively.  Given the consecutive nature of the Thai sentences, the earliest date on which Mr. Lai could expect to be discharged is 5 May 2010.

5.  Had Mr. Lai been sentenced in Hong Kong, he would most probably have been sentenced to 12 years’ and 25 years’ imprisonment on the first and second counts respectively.  The sentences would most likely, however, have been concurrent.

6.  This means that, had Mr. Lai been sentenced in accordance with Hong Kong law, then on his return here in February 1994, he would have had about 167 months of imprisonment left to serve.  If one remits one-third of that 167 months (pursuant to Prison Rules (Cap. 234A) r. 69), Mr. Lai would have been released upon expiry of 111 1/3 months from February 1994.  That gives a date in May 2003 and means that Mr. Lai would long have been released by now.

7.  The Long-Term Prison Sentences Board reviewed Mr. Lai’s sentence in October 2007.  The Board had before it a number of reports and comments, including submissions by Mr. Lai seeking such remission of the remainder of his Thai sentences as would enable him to be released immediately.  By a decision communicated by letter dated 31 March 2008, the Board refused to recommend that Mr. Lai’s Thai sentences be remitted in any way.

8.  The Board wrote (in translation):-

“In reviewing your sentence, the Board has considered your performance and your circumstances in the prison.  The Board has also reviewed all reports and comments concerning you as well as the letter and the enclosures submitted by your legal representative.  After carefully considering all the materials and matters, the Board is of the view that there is no special reason [‘沒有特別理由’] that warrants reducing the term of your sentence.  Hence, the Board has decided not to recommend that the Chief Executive reduce all or part of your fixed-term custodial sentence.”

9.  Mr. Lai now seeks judicial review of the Board’s refusal.  He says that the Board’s decision was flawed in the following principal ways:-

(1) The Board wrongly believed that Mr. Lai had to show a “special reason” (“特別理由”) before his sentence could be remitted.

(2) The Board did not, prior to its deliberations, disclose to Mr. Lai any of the reports or other documents which it considered in relation to Mr. Lai’s case.

(3) The Board failed to give any or any adequate reasons for its decision.

(4) The Board failed to take account of relevant factors, including that had Mr. Lai been sentenced here in Hong Kong he would long have been freed by now.

II.  BACKGROUND

10.  The Board was established by the Long-Term Prison Sentences Review Ordinance (Cap. 524) (LTPSRO).  It reviews the sentences of prisoners (whether convicted in or outside Hong Kong) who have been sentenced for indeterminate periods or for determinate periods of 10 years or more.

11.  Consequent upon such review, the Board may recommend to the Chief Executive that the remainder of a prisoner’s determinate sentence be remitted in whole or in part.  In relation to indeterminate sentences, the Board may recommend the substitution of a determinate sentence to the Chief Executive.

12.  By LTPSRO s. 8, 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.”

13.  By Long-Term Prison Sentences Review Regulation r. 2, the Board may take account the following matters 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.”

14.  The Agreement between the UK and Thai Governments mentioned above came into effect upon ratification in 1991.

15.  The Agreement (art. 3(g)) provides that an offender will not be moved from the custody of the transferring to that of the receiving State unless the offender agrees to the transfer.

16.  Article 6 of the Agreement provides that:-

“(1)   The continued enforcement of the sentence after transfer shall be governed by the laws and procedures of the receiving State, including those governing conditions for service of imprisonment, confinement or other deprivation of liberty, and those providing for the reduction of the term of imprisonment, confinement or other deprivation of liberty by parole, conditional release, remission or otherwise.

(2) Subject to paragraph (3) of this Article, the receiving State shall be bound by the legal nature and duration of the sentence as determined by the transferring State.

(3) No sentence of deprivation of liberty shall be enforced by the receiving State in such a way as to extend beyond the period specified in the sentence of the court of the transferring State.  Such enforcement shall as far as possible correspond with the sentence enforced by the transferring State.

(4) If the transferring State revises, modifies, or cancels the judgment or sentence pursuant to Article 5 of this Agreement or otherwise reduces, commutes or terminates the sentence, the receiving State shall upon being notified of the decision give effect thereto in accordance with this Article.....”

17.  Just before he agreed to be transferred from Thailand to Hong Kong, Mr. Lai received an information sheet in relation to the effect of the Agreement.

18.  Paragraph 5 of that sheet stated:-

“When an offender is returned to Hong Kong, Thailand will have calculated what period still remains to be served, taking into account any remissions earned etc.  If the original sentence imposed was longer or of a different nature than the sentence which could be imposed for the same offence in Hong Kong, it would be adapted as appropriate under the law of Hong Kong.”

19.  That paragraph was wrong.  The Agreement did not contain any provision for the “adaptation” of a Thai sentence down to any shorter sentence which a Hong Kong Court might impose for the same offence.

20.  Following Mr. Lai’s transfer to Hong Kong, paragraph 5 of the information sheet was corrected to read:-

“When a prisoner is returned to Hong Kong, Thailand will have calculated what period remains to be served, taking into account any remissions earned and any other relevant factors.  Under the Agreement, Hong Kong is bound by the legal nature and duration of the sentence as determined by the Thai authorities.”

21.  Nonetheless, Mr. Lai says that he was misled by the earlier version of paragraph 5 to agree to the Hong Kong transfer.  According to Mr. Lai, he believed that, upon transfer, his Thai sentences would be “adapted” to reflect the sentences which a Hong Kong Court would have imposed for his offences.

22.  By s. 10 of the Transfer of Sentenced Persons Ordinance (Cap. 513), since June 1997 Mr. Lai has been detained here in respect of the unexpired part of his sentences under a deemed inward warrant.

III. DISCUSSION

A.  Ground 1: Requirement of special reason

23.  Mr. Paul Harris SC (appearing for Mr. Lai) submits that it was the Board’s duty to consider all relevant circumstances and then decide whether such circumstances called for a remission.

24.  There was no burden on Mr. Lai (Mr. Harris stresses) to establish some “special reason” (in the sense of something, exceptional or extraordinary) before his sentence could be remitted.  In effect (Mr. Harris suggests) the Board was adopting a more stringent approach than that mandated by LTPSRO s. 8.

25.  Mr. Simon Westbrook SC (appearing for the Board) accepts that Mr. Lai was not required to show any special grounds.

26.  Mr. Westbrook instead contends that the phrase “special reason” in the Board’s March 2008 letter should not be construed as if it were in a statute.  The phrase (Mr. Westbrook says) meant no more than that, applying the principles in LTPSRO s. 8, the Board did not believe Mr. Lai’s case called for remission.

27.  I am unable to accept Mr. Westbrook’s submission.  However generously read, the March 2008 letter suggests to me that, as far as the Board was concerned, Mr. Lai had to establish some special reason for a recommendation of remission.

28.  I cannot assume from the wording of the letter that the Board simply applied the LTPSRO s. 8 principles, as opposed to believing (wrongly) that the application of those principles required the demonstration of some “special reason” for a recommendation of remission.

29.  The March 2008 letter is laconic.  I can find nothing there that supports Mr. Westbrook’s proposed reading.

30.  On Ground 1 alone, I would allow Mr. Lai’s judicial review.

B.  Ground 2: Non-disclosure of documents

31.  Mr. Harris complains that Mr. Lai was not furnished with copies of reports or other documents which were put before the Board in relation to his case.  Mr. Lai did not know what materials the Board considered and could not make representations to rebut any adverse points made in such materials.

32.  In response, Mr. Westbrook notes that LTPSRO s. 13 provides that, for prisoners serving an indeterminate sentence, the Board must copy them with relevant documents prior to a review.  Otherwise, in the absence of any regulation specifically requiring disclosure, an offender (Mr Westbrook argues) has no right to be provided with copies of documents furnished to the Board.

33.  Mr. Westbrook submits that by s. 13 the Legislature has seen fit to distinguish and draw a line between certain types of cases.  It would be too heavy an administrative burden (Mr. Westbrook suggests) if all review prisoners were entitled to receive copies of relevant material.  For instance, on 5 October 2007 when the Board considered Mr. Lai’s case, there were altogether 55 cases for the Board to evaluate.

34.  The Board is a statutory body (Mr. Westbrook points out), exercising the prerogative of mercy vested in the Chief Executive.  An offender knows perfectly well what sentence he is serving and why.  He is aware of the review process and informed of the factors which (according to statute) the Board must consider.  In those circumstances, Mr. Westbrook argues that there is no need to provide the prisoner with copies of relevant documents.

35.  Again, I am not persuaded by Mr. Westbrook’s submission.

36.  The Board is here dealing with the liberty of a person.  On principle, in the absence of good reason to the contrary, the person concerned should be provided with copies of the materials which the Board will be considering.  In that way, the individual will be made aware of any erroneous or possibly biased observations in such material and will have an opportunity to counter the same.  That seems to be a simple matter of fairness.

37.  LTPSRO s. 13 itself gives examples of situations where there may be good reason not to disclose material.  Thus, s. 13(3) stipulates that, even in the case of prisoners serving indeterminate sentences, the Board may decline to provide copies of materials where disclosure might reasonably be thought to jeopardise the safety of third parties, the security of a detention facility, or the conduct of an investigation into an offence.  None of those situations seemingly apply here.

38.  I do not think that mere administrative inconvenience can be a good reason.  In particular, I do not see how (say) the mere photocopying of the materials (whatever they may be) relating to the 55 cases determined on 5 October 2007 can amount to a reason to compromise basic notions of fairness.

39.  I doubt that the Legislature regarded LTPSRO s. 13 as an attempt to draw some sort of line to save the Board such administrative inconvenience.  On the contrary, I am certain that the Legislature would have had common law principles of fairness firmly in mind when passing s. 13.  It may be the case that s. 13 only provides for copies to be furnished to certain offenders.  But this does not mean that, in contravention of ordinary principles of fairness and in the absence of good reason, materials should not be provided to other classes of offenders.

C.  Ground 3: Failure to give reasons

40.  Mr. Harris points out that the Board’s March 2008 letter says nothing about why Mr. Lai’s case was not thought to merit any remission.  This (Mr. Harris submits) is contrary to principle, especially since the Board’s decision concerns Mr. Lai’s liberty.  There must at least have been an obligation on the Board to state the gist of its thinking to enable Mr. Lai to understand why the Board decided as it did.

41.  Mr. Westbrook fairly accepts that it is the general trend for reviewable bodies (such as the Board) to give reasons and that the reasons should be adequate for the case in question.

42.  Mr. Westbrook counters that the right to reasons is not absolute.  Here, the only question was whether there was sufficient reason to recommend any remission of the remainder of Mr. Lai’s Thai sentences.

43.  Mr. Lai submitted the following matters to the Board in support of remission:-

(1) He had been misled by the original paragraph 5 in the information sheet.

(2) He would have long since been released, if he had been sentenced under Hong Kong law.

(3) He had converted to Christianity.

(4) He had HIV/AIDS and, although not at a terminal stage, his prognosis is poor.

(5) It was possible that, under a Thai royal amnesty of 2006, his Thai sentence had been completely remitted on account of his suffering from AIDS.

44.  The last matter arises out of the proper construction of the Thai royal amnesty of 2006.

45.  The Thai consulate in Hong Kong reads the complete amnesty granted there to AIDS sufferers as not applying to offenders convicted of drug-trafficking.  On the other hand, Mr. Lai’s lawyers have put forward translations of the relevant 2006 royal decree which possibly suggest that the exception in relation to drug-trafficking only applies to those convicted of such offence after 2004.

46.  There is a question then over the precise scope of the amnesty granted in 2006 to AIDS sufferers who (like Mr. Lai) were convicted before 2004.  On one reading, Mr. Lai should be free today even as a matter of Thai law.

47.  Nonetheless, Mr. Westbrook says that, by its refusal of any remission, it can be inferred that the Board rejected Mr. Lai’s submissions in their totality.  It was unnecessary (Mr. Westbrook posits) to give detailed negative reasons in relation to the rejection of each submission.

48.  I disagree.

49.  As a matter of first impression, Mr. Lai’s case strikes me as one which cries out for a recommendation of complete remission.  That the Board decided otherwise, seems a result which is so at odds with ordinary expectation as to require some articulation of reasons.

50.  To see why the Board’s decision is surprising, consider each of the limbs of LTPSRO s. 8.

51.  As far as rehabilitation under s. 8(a) is concerned, Mr. Lai has been detained for significantly longer than he would have been if he had been sentenced under Hong Kong law.  One can certainly presume him to have been more than sufficiently rehabilitated as a result of his detention.  There is no evidence to the contrary.  If there had been, the Board ought to have provided him with at least the gist of such evidence so that Mr Lai could fairly deal with the same.

52.  In relation to s. 8(b), Mr. Lai being presumably rehabilitated, it must be in his interest to rejoin the community at large and live an ordinary life.  From the public point of view, Mr. Lai having already been imprisoned for the length of a Hong Kong sentence, there can be no further deterrent value to his continued detention.  There can be little justification for using up public resources to maintain him in prison for any further period.

53.  In relation to s. 8(c), it is true that Mr. Lai’s offence was a serious one.  But the point is that he has served the time that a Hong Kong Court would have imposed for such offence.  In addition, there is a possibility that, on a true construction of the 2006 royal decree, Mr. Lai should now be free even under Thai law.

54.  As far as s. 8(d) is concerned, Mr. Lai cannot reasonably be expected to inflict any foreseeable harm to the community following an early release.  See my comments on s. 8(b).

55.  There are at least 2 further considerations in this case.

56.  First, given that he has HIV/AIDS, it is far from clear how long Mr. Lai has to live.  His poor health seems to me a factor which points to early release, so that he may seek as much as possible to live the life of an ordinary human being for however much time may be left to him.

57.  Second, insofar as Mr. Lai claims to have been misled by the former paragraph 5, it might be thought that in any event Mr. Lai has not suffered detriment.  This is because he has had the benefit of amnesties granted by the Thai king.  Further, had he remained in Thailand, he would not have enjoyed any one-third remission in sentence allowed by the Prison Rules here for good behaviour.  Nor would Mr. Lai have been entitled to any consideration of remission by the Board.

58.  But I doubt that a consideration along the lines just outlined constitutes a complete answer.  I doubt, because one should not too readily discount the value of liberty to an individual.

59.  Mr. Lai was led to believe that, upon transfer to Hong Kong, his sentence would be assimilated to that which he would have received had he been convicted here.  He thus assumed that he would be freed much earlier than has actually proved the case.  His hopes of an earlier release have been disappointed.

60.  Mr. Westbrook faintly suggests that the information sheet was “at best contradictory or equivocal”.  But I do not see how that negates the actuality that Mr. Lai was misled by the ambiguity inherent in the old paragraph 5.  It is perfectly understandable that Mr. Lai misunderstood the old information sheet.  I do not think that he can be blamed for having done so.

61.  The emotional effect of having one’s hopes dashed in those circumstances cannot (I think) be so readily dismissed by maintaining that, strictly, Mr. Lai is no worse off than if he had remained in Thailand.

62.  It may be true that Mr. Lai is no worse off in a hard numbers sense.  But the proposition ignores the intangible (but no less real) blow to the human spirit resulting from the initial representation and its later revision.  At least as a secondary matter, the Board would need to have some regard (and be sensitive to) the psychology of the matter in carrying out the delicate and difficult calculus of human compassion which inevitably forms part of its task.

63.  In summary, on the material before this Court, everything points towards remission of the balance of Mr. Lai’s sentences.  That such was not the outcome calls out for explanation.  Explanation cannot be inferred from a bald statement that the Board found no “special reason” to make a favourable representation.

D.  Ground 4: Failure to consider relevant factors

64.  The substance of this complaint overlaps with Ground 3.

65.  Absent reasoning for its surprising decision, the Board (Mr. Harris submits) must be assumed to have taken account of irrelevant matters and to have omitted to consider relevant ones.  Those relevant considerations are the factors discussed above in connection with Ground 3.

66.  In light of my earlier conclusions, Ground 4 must likewise be determined in Mr. Lai’s favour.

IV. CONCLUSION

67.  Mr. Lai’s judicial review succeeds.  The Board’s decision not to recommend a remission in his case is quashed.  The matter is remitted to the Board for reconsideration at the earliest possible opportunity.

Hon Saunders J:

68.  I agree.