HKSAR v. YEUNG KWAI KUEN

CACC254/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 254 OF 2001

(On appeal from DCCC 144 of 2001)

-------------------------

----------------

---------------------

J U D G M E N T

---------------------

Stock JA (giving the judgment of the Court):

Introduction

1. This is an application for leave to appeal against sentence, in which the applicant invites this Court to reduce the sentence imposed by the judge in the court below, on the ground that, since the imposition of sentence and whilst in prison the applicant has suffered assaults and injuries; and that the protective custody in which he has since been held renders the circumstances of his incarceration more harsh than the sentencing judge contemplated.

The charges

2. The applicant pleaded not guilty to two charges in the District Court before Deputy Judge Kwok. The first charged that the applicant was, on 4 December 2000, contrary to section 17(2) of the Firearms and Ammunition Ordinance, Cap. 238, in possession of an imitation firearm at the time of committing an arrestable offence, namely, criminal damage to a motor vehicle which belonged to a lady named Jocelyn Tan. The second charged the applicant with criminal damage to that vehicle, contrary to section 60(1) of the Crimes Ordinance, Cap. 200.

The facts

3. The applicant and Ms Tan had, until the end of 1999, been close acquaintances. The nature of their relationship was the subject of some contention at trial, but that is not a matter into which it is now necessary to go. Ms Tan was previously married to a man called Leung, from whom she is divorced. This is relevant because Leung is a triad member, is serving a sentence for a money laundering offence, and it is suggested that it is at Leung's behest that the applicant has, since sentence, been assaulted and in respect of whom the applicant's safety in prison has been, and remains, at risk.

4. The prosecution case was that on 4 December 2000, the applicant, then aged 36 years, took part in a car chase, he - in a van with other men - pursuing Ms Tan in her saloon vehicle, during which Ms Tan was put in great fear; and that, in the course of that chase, he discharged a missile from an imitation firearm, which appeared to her to be an L-shaped pistol. The missile struck her vehicle, causing it damage to the tune of about $20,000. He only gave up the chase when she arrived at a police station. The applicant's defence was one of alibi. He did not give evidence. The judge rejected his defence and accepted the evidence of Ms Tan. The defence entailed the applicant in fabricating, with the aid of others, a visit to a hospital at the time the car chase took place.

5. The full flavour of the conduct of the applicant; its planning and deliberation; the terror which must have been visited upon the complainant; and the potential danger it held for her and other road users is best appreciated by a reproduction of the judge's summary in his Reasons for Sentence :

" The facts established beyond reasonable doubt at trial showed that in the early hours on 4 December 2000, the victim, Madam Tam Jocelyn Rivera, had a sauna and massage with her friends. At about 3.10 to 3.15 am, she collected her Lexus private car in a car park in Tsim Sha Tsui and started driving home to Marina Cove. When she was leaving the car park and driving into the main road, i.e. the Science Museum Road, she noticed a dark blue seven-seater van stationary in the opposite lane. She had been on the alert for vehicles in her vicinity after her Ferrari private car had been damaged and set on fire on 16 November 2000. She felt strange about this van because its windows were covered by khaki-coloured transparent sheets and a man inside was covering his face with his hand. But she had to drive on and paid no further attention to the van.

However, after she passed Pik Uk, she noticed this seven-seater van was moving behind her. She then stopped her car on a slope in order to find out if the van was following her. The van did not stop and just kept on moving. The victim waited on the slope for about five minutes and then continued her journey home. Still thinking that she had been followed, she did not go home direct after she had arrived at Marine Cove, but stopped her car at the roundabout outside the visitor's gate to find out if she had been followed. After stopping there for about one to two minutes, she noticed that the same dark blue van suddenly appeared and was approaching her in a high speed. It came to a halt at the roundabout. Its door was opened and someone appeared to be rushing towards her. The victim drove away at once. She wanted to go to Sai Kung police station. The van, however, kept on following her. When the two vehicles reached the location near the Sai Kung Market, the van pulled up to the right-hand side of the victim with the left side of the van only a little bit longer than an arm's length or about 4 to 5 feet from the right side of the victim's car. While the two vehicles were moving abreast in that position, the defendant wound down the window of the van at the rear passenger seat, pointed a pistol at the victim and fired the pistol once. The victim saw some flash or sparks coming out of the barrel of the pistol and heard a loud bang sound. She was very frightened. She kept on driving to Sai Kung police station. The van kept on following her until they reached the entrance of Sai Kung police station. The victim then made a report to the police.

Upon examination of her car, she found a dent in the right front door of the car by the side of the driver's seat, as shown in the photographs produced at the trial. The cost of repair was $20,000.

The pistol possessed by the defendant at the material time was an L-shaped pistol, black in colour and appeared to be made of non-plastic materials. It has not been recovered." (Tr. pp 42-43)

6. The applicant has previous convictions, but they are somewhat stale, and the penalties imposed suggest that they could not have been very serious. They include a conviction for fighting in a public place, and one for assault occasioning actual bodily harm.

Sentence

7. The judge sentenced the applicant to a term of two years' imprisonment in respect of the first charge, one year in respect of the second, and ordered the two sentences to run consecutively, making a total of three years' imprisonment. We pause to comment that the judge's approach to sentence was not appropriate in one particular aspect, although at the same time we acknowledge that the judge's Reasons for Verdict and Sentence are thorough, and very helpful, and evidence a most conscientious approach. The point which we make, however, is that the judge said that he was of the view that a starting point of three years was "appropriate for the overall sentence", and from that beginning he went on to determine sentences for each offence. The correct approach is first to determine the starting point for the individual offences; then the appropriate sentence after mitigation, if any, for the individual offences; and, only then, totality.

The Grounds of Appeal

8. The grounds of appeal read as follows :

"1. The applicant has suffered attacks and injuries during his incarceration at Stanley Prison which resulted in his punishment being more severe.

2. In all the circumstances the sentence was too severe."

No direct reference is there made to the applicant's conditions of confinement, which is the aspect upon which particular emphasis has been placed in oral submissions.

9. The second ground, that the sentence is too severe, is an adjunct to the first. It is not suggested that, but for the new circumstances to which the first ground, as developed, relates, the sentence was too severe. Mr Griffith's contention is that the sentence was high, but that it cannot be said to be manifestly excessive, and that this application turns upon events subsequent to sentence. We agree that the sentence cannot be said to be manifestly excessive, but we do not agree that it was high. In our view, it was low. The applicant acted with other men to cause great fear to the complainant; his conduct was planned; he flourished what appeared to her to be a gun; he went so far as to discharge the instrument; and by his conduct, which was hardly momentary in its execution, he terrified the complainant who must have feared for her life; and he, and those with him, posed a real risk of a serious accident involving the complainant and, perhaps, other motorists.

The new evidence

10. There is before us a Notice of Motion for the admission of additional evidence under section 83V of the Criminal Procedure Ordinance. We have one affirmation, that of the applicant; and one affidavit, that of an officer of the Correctional Services Department.

11. The applicant was sentenced on 7 July 2001. His affirmation reveals that four days after he was sentenced, namely, on 11 July 2001, he was transferred to Stanley Prison. Another inmate there was the former husband of the complainant. The applicant says that he knew that the husband, a known triad, was at Stanley Prison, but he nonetheless had no concern about his personal safety, because he thought that security measures would be sufficient to protect him. However, on 19 July, and again on 20 July 2001, the applicant was assaulted, although it is not clear whether at the behest of the applicant's former husband. That, however, is what the applicant suspects. He states that he suffered stab wounds and was hospitalised for over three months, underwent a surgical operation, and has, as a result of the assaults, impaired vision in one eye. He says that he believes that there is a contract out to kill him. He is now in Shek Pik Prison, is in a cell by himself, and contact with other prisoners is prohibited. He is allowed only one hour each day out of the cell. The punishment is, in the circumstances, it is said, much more severe than was intended by the judge, wherefore the applicant seeks a reduction in sentence at the hands of this Court. That, too, is the long and the short of the submission made to us on his behalf.

12. The affidavit of the Chief Superintendent of Stanley Prison shows that when the applicant was admitted to that prison, it was known that Leung was a serving prisoner there, so the applicant was offered protection which, however, he declined. Nonetheless, the authorities decided to move the applicant, and administrative approval for that move came on 18 July 2001. The applicant was to be moved within a matter of days. However, on 19 July 2001, the applicant was punched several blows by another inmate, and he suffered bruising to the face and a cut by his right eye. On 20 July 2001, the applicant was told that he was to be transferred to another prison and that, until then, he would be kept in a secure unit, but he said that he wanted to remain at Stanley. On his way to the Protection Unit, he was assaulted by another inmate with a sharpened tooth brush and was, as a result, sent to hospital. The medical report reveals that there was facial bruising, and a fracture to the orbit of an eye, which required surgery. The applicant now has some permanent disability to the vision of that eye, although it is not contended that he has lost his sight.

13. It appears that he is now, otherwise, in sound and fit medical condition. We note also, in so far as he seeks reduction of sentence by reason of his medical condition, that he has failed since discharge from hospital to return for follow-up examination and treatment. He was discharged from hospital on 25 September 2001, two months after his admission (not, incidentally, "over three months" as he affirmed); and then taken to Shek Pik Prison, where he made a request for protection, and has not asked to be released from protection, or to be permitted to associate with other prisoners under protection. He is in the Protection Unit, and is there pursuant to the provisions of rule 68B of the Prisons Rules, Cap. 234. He has one hour exercise each day. The question of his detention in that Unit, and the conditions of that detention, are reviewed monthly by the Board of Review appointed for that prison under rule 68B(4). By operation of these Rules, a prisoner may be released from those protective conditions, or the conditions of detention may be changed to allow, for example, association with other protected prisoners. The evidence is that the applicant has access to radio, newspapers, books and magazines. The applicant's earliest date for release is 24 June 2003, assuming full remission for industry and good conduct.

Argument and Analysis

14. In support of the argument advanced for the applicant, we were taken to the text of Thomas 'Principles of Sentencing' 2nd edn (1979), 215-216. These are passages under the heading 'Additional Hardships in Prison', which cite some cases in which the courts had, as an act of mercy, reduced sentences where circumstances of imprisonment bore 'substantially more heavily upon those subjected to it than imprisonment in ... more ordinary circumstances' (R v Fletcher (unreported) 17 January 1974, CA (England)). Fletcher itself was a case in which a sentence was reduced because the offender was placed in solitary confinement for his own protection. There was there, however, the distinctive element that the need for protection arose because the prisoner had assisted prison officers to prevent an escape. One notes, further, Professor Thomas' remark that hardship in prison has weighed 'in a small number of cases [whose] general effect is uncertain'; and an analysis of the cases cited in those passages shows how unusual, and particularly cogent in the need for clemency, they were. The theme of more recent years in that jurisdiction is one whereby an offender's treatment at the hands of fellow inmates, or the fact of his solitary confinement is, generally, not a matter to which the court will have regard. The cases are summarised in Current Sentencing Practice by Professor Thomas, C5-2C01 to C5-2C03, under the rubric:

"The sentencer should not take account of the fact that the offender, if sentenced to imprisonment, will be detained in solitary confinement for his own protection in accordance with Prison Rules 1964, r.43."

15. The authorities have most recently been analysed in R v Charles Nall-Cain [1998] 2 Cr App R(S) 145, 150-151 :

" There are a number of authorities in relation to the principle which we have sought to identify which, as it seems to us, do not speak with one voice. In Holmes (1979) 1 Cr.App.R.(S.) 233, on which Mr Causer principally relies, the Court did have regard to the appellant's treatment by other inmates. Three observations upon that case seem pertinent. First, as was said in Parker [1996] 2 Cr.App.R.(S.) 275 at 277 and 278, the circumstance of that case were wholly exceptional. Secondly, as a sentence of two years for rape was reduced to 18 months' imprisonment suspended, it can hardly be said that Holmes represents current sentencing practice. Thirdly, it is, as it seems to us, a decision which is, on the face of it, at variance with earlier and subsequent authority in this Court.

In Kirby (1979) 1 Cr.App.R.(S.) 215, which was not cited to the Court in Holmes, a division of this Court presided over by Lord Widgery C.J. and of which the other members were Waller L.J. and Lloyd J., now Lord Lloyd of Berwick, the Court expressly rejected the point on which the Court in Holmes relied and held that the fact that a defendant, for his own protection, has to serve his sentence in isolation from other prisoners under rule 43, is not a factor which the Court should take into account in determining length of sentence. The same approach was reiterated by this Court, differently constituted, in Kay (1980) 2 Cr.App.R.(S) 284 and, more recently, in Parker, to which we have already referred. In Kay, at page 286, appears the following :

'... it is perfectly plain from all the material which I have mentioned that prison life is a very harsh experience for Kay. It is plain from the evidence before the Court that he is unable to come to terms with his sentence and that he suffers very sorely at the hands of his fellow prisoners. We add that it has unfortunately been necessary for Kay to be seen by a psychiatrist and to be supported by medication and by the probation officer ... It seems to this Court that how a man reacts to prison life is not a matter which should affect the principle of the sentence. When sentencing a man the court is concerned with the character of his crime and with his individual circumstances as revealed in his criminal background, if any.'

Then these words :

'... it is really a matter for the prison authorities to deal with the most unhappy situation which has developed in the case of Kay within the context of the prison system.'

In our judgment the authorities, in particular, Kirby, Kay and Parker, by which, as it seems to us, we are bound and with which, in any event, we respectfully agree, show that a defendant's treatment by other inmates is not generally a factor to which this Court can properly have regard. It is to be noted that a prisoner who is maltreated by other prisoners, has a number of avenues of redress open to him, some of which are exemplified in the present case. He can complain (as the appellant has done), in relation to related matters, to the Prison Ombudsman : the Prison Ombudsman has upheld certain of the appellant's complaints. He can obtain compensation via the Criminal Injuries Compensation Board in appropriate circumstances. And, above all, he can apply to the Home Secretary for compassionate release.

In our judgment, the position is quite different, so far as treatment by other prisoners is concerned, from that where, for example, there is a deterioration in a defendant's health, or it is impossible, by reason of a prisoner's physical disabilities, for the prison authorities to cope with him. Such cases may give rise to the exercise of mercy by this Court : see, for example, Bernard [1997] 1 Cr.App.R.(S.) 135. But, in our judgment, the difficulties which would arise if this Court were called upon to adjudicate upon the nature of disputes between prisoners is a reason of practice, in addition to the reasons of principle and authority which we have sought to identify which, generally speaking, precludes this Court from taking into account the treatment of an appellant by other prisoners when considering the sentence which was passed upon him." (Emphasis added)

16. We see no sound basis upon which to depart, in this jurisdiction, from the general principle which emerges from those cases. Whilst it is true that some of the avenues of redress itemised in Nall-Cain are not available in Hong Kong, the Hong Kong prisoner nonetheless is entitled to seek from the executive release on a date earlier than the sentence would normally permit, by reason of circumstances arising during incarceration; and for present purposes we leave aside review by the Long-Term Prison Sentence Review Board, since the sentence with which we are concerned is not one amenable to review by that Board. It has been suggested to us in argument that the availability of recourse to the executive amounts, in this case at least, to a hollow hope, for the exercise of mercy by the executive is, it is said, rare. There is no basis upon which this Court could properly assume that an appeal to the executive in any particular case will not appropriately be addressed.

17. The essential function of this Court, upon an application which pertains to sentence, is to determine whether the appellant should be sentenced differently for the offence for which he was dealt by the court below (see section 83I(3) of the Criminal Procedure Ordinance, Cap. 201); and the Court will not intervene unless it is of the opinion that the sentence was manifestly excessive or wrong in principle. Generally, the Court's function is to look at the factors which prevailed at the date of sentence, and not to act as an administrative review, or a supervisory, tribunal to take into account factors since sentence. That is not to say that there are never instances in which the Court will give weight to developments since sentence, or that the court is precluded from doing so. See, for example, R v Sze Tak-hung [1991] 1 HKLR 109, 112. But the circumstances in which it will give effect to post-sentence events are limited.

18. The division between matters which are properly the province of the sentencing tribunals and those which, on the other hand, are properly the province of the prison authorities and more appropriately within the realm of an appeal to the executive for earlier release; and the limitations of the appellate function in the face of new developments, are echoed in decisions in Australia. So, for example, in New South Wales :

" It has been made plain in this Court [of Criminal Appeal] on many occasions that the Court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time when it was passed. The review of a sentence in the light of subsequent events is the proper province of the executive Government and not of an appeal court."

R v Munday [1981] 2 NSWLR 177, 178.

19. R v Vasich (1998) 99 A Crim R 262 is a decision of the Court of Criminal Appeal, Western Australia; in which the approach of Australian courts was summarized at 270-271 :

" ... In Smith (1987) 44 SASR 587; 27 A Crim R 315, Bailey (1988) 35 A Crim R 458 and Eliasen (1991) 53 A Crim R 391 the Courts of Criminal Appeal of South Australia, New South Wales and Victoria respectively, emphasised that generally an appellate court should not intervene upon the basis of events which have occurred since the imposition of sentence and that further evidence, therefore, is not receivable to establish the occurrence of such events. In Eliasen (at 394) Crockett J said:

'This Court accedes very sparingly to applications of this kind. Applications for leave to appeal are dealt with on the basis that, unless the sentencing judge has been shown to have erred in the exercise of his sentencing discretion, this Court will not intervene in the matter. The question as to whether error has occurred is to be determined by reference to the matters available to be considered by the judge at the time that he determines upon the sentence.'

However, the appellate court may receive evidence as to events occurring after sentence if that further evidence tends to show the true significance of facts which were in existence at the time of sentence. Then the court will reconsider the matter in the light of that further evidence and, even where the discretion of the sentencing judge has not miscarried, it will intervene if it thinks that the further evidence should lead to a different sentence (see Smith per King J at 588; 316, Bailey per Lee J at 462 and Eliasen per Crockett J at 394)." (Emphasis added)

20. In so far as we are asked to give recognition to the medical condition of the applicant, namely, the impairment of vision, and the interment for two months in hospital, a factor apart from his present isolation, the same principles apply. See, for example, R v Ho Mei Lin [1996] 4 HKC 491; AG v So Chee Kong, Eddie, AR 9 of 1992, 8 June 1994.

21. Mr Griffiths has prayed in aid a number of decisions, here and in England, to buttress an argument which would have this Court adopt a less restrictive general approach to the admission of evidence of post-sentence events. In our judgment, the decisions illustrate the type of case-specific and unusual circumstance in which action by the courts, rather than by the executive, is demonstrably required, and are decisions which do not undermine the good sense and rationale of the general rule.

22. Counsel referred to HKSAR v Tse Ka Wah [1998] 3 HKC 74, where the court allowed an appeal against sentence, citing the fact that since sentence the applicant had been subjected "to additional hardship in custody through no fault of his own". That decision does not gainsay the principle which we have articulated as one that will generally apply, for it was a most exceptional case in which the judge, when sentencing, announced the fact, which ought to have been kept confidential, that the applicant was an informer; and it was the court's own conduct, at the moment of sentence, that put to the applicant in a position of real risk which, but for the court's comments, he would not have been placed.

23. In R v Wong Chi Keung [1992] Cr App No. 439, the applicant had, since sentence, given information to the police resulting in the arrest and conviction of a mastermind in a kidnapping. This is a category all of its own; a very distinct category, easy to define, in which a policy and practice has developed by which this Court does, in appropriate cases, give credit for post-sentence cooperation which has resulted in arrests and conviction. The reason, or one of the reasons, for this special approach is intimated in the judgment of Lord Mustill in R v Chan Wai Keung [1995] 1 HKCLR 123, 131 :

" ... What should happen where the assistance to the authorities, whether taking the shape of information or evidence, is given after the accused has received an appropriate sentence for the crimes which he himself has committed? Previously, it was thought best to leave the recognition of this to the executive authorities, but the practice has now changed. The value of the assistance does not depend on when it is given, and it is desirable that its value should be publicly acknowledged, and publicly acted upon by a reduction in sentence on appeal, so that those who wish to reflect after sentence on how their predicament may be eased by belated co-operation can have confidence that it will be appropriately rewarded. Just such a development was discussed and approved by the Court of Appeal of Hong Kong in R. v. Sze Tak-hung [1991] 1 HKLR 109."

24. Next was R v M, 24 September 2001, a decision of the English Court of Appeal in which that Court reduced a sentence by reason of post-sentence events. The applicant's mother had, after sentence, married, and the applicant, who was at the time of the appeal under supervision, having already been released under licence and with glowing reports from his employers, had a chance of joining his mother in Canada, and had a job offer there. The Court evidently took the view that to stifle the good opportunity that presented itself, there and then, for the offender in that case to mend his ways and to reform would be shortsighted indeed. Those circumstances are far removed from those of the present case, and no question of referring the matter to the executive realistically arose. The Court, encouraged by the progress made by a youngster already released, took a practical and just decision which could only have real and beneficial impact if taken swiftly.

25. Mr Griffiths cited another decision of the English Court of Appeal, R v Parker, (unreported) 1 February 1990, in which that Court substituted a suspended sentence for a sentence of imprisonment, again by reason of post-sentence events. That is a case which was unusual indeed, and turned very much on its peculiar facts. The Court there was dealing with a psychiatrically disturbed patient, a condition but for which he was unlikely to have committed the offences in question. He had been given bail pending appeal, and during the period of his release on bail underwent treatment, the result of which was that there had been a major improvement in his condition. More than that, however, the evidence was that he was at the time of the appeal "on a knife edge", as it was described, and that if he received no more treatment he would fall, as it was put, "into the abyss, in which event he would remain in his present condition for the rest of his life". He had by then been at liberty for many weeks, and it is hardly surprising that the Court saw fit to alter the sentence, in view of his progress, and of the gloomy prognosis in the event of his return to prison.

26. Parker is illustrative of the "ad misericordiam" category to which reference was made by Sir Derek Cons, Acting Chief Justice, in Sze Tak Hung above, in a passage upon which Mr Griffiths places much reliance, when, at page 112G-I, the Acting Chief Justice said that the Court was not precluded from taking into account evidence given by a prisoner after sentence has been passed on him; that it was "not uncommon" for the Court to take account of post-sentence occurrences; and that : "More often than not perhaps they are factors which go ad misericordiam or over which the convicted person has no control ...".

27. Sentencing is, as has often been emphasized, an art, and not a mechanical application of rules or policy to the exclusion of the facts and justice of individual cases. It follows that there will be cases where a court will be moved to take action in an appellant's favour by reason of post-sentence events because a failure to do so, by that court and at that stage, will defeat the ends of justice and the public interest. That is amply illustrated by the examples of R v M and Parker. There was every reason in each of those cases to effect the immediate release, or, rather, not to require the re-incarceration, of the offenders. To do otherwise, to delay and leave the matter to the executive, would have resulted in obvious injustice, a reversal of accrued benefit, and actual damage to the appellants, and to their prospects of rehabilitation. This case is not such a case; and cases of the present kind, where a plea is made to the harshness of imprisonment conditions, will not normally fall within that category. There is no question in the present case of immediate release, and that is not what is sought. There is - subject only to the issue of article 14 of the International Covenant on Civil and Political Rights ("ICCPR"), to which we shall shortly return - no reason why the matter may not properly be referred to, and considered by, the executive.

28. The events subsequent to sentence in this case are unfortunate, though regrettably not unique, and the consequential ailment and prognosis not of the kind which, very exceptionally, might warrant intervention by this Court. If this Court were routinely to interfere in post-sentence events, such as the present, save where policy, as in the case of informants, clearly dictates or where, as in the cases of Parker and R v M, delay in acting will be antithetical to the very clear justice of the matter and to the public interest, there would be, it seems to us, no end to the matter; no end to new circumstances which the Court will be called upon to give effect; and no end to the encouragement of appeals based upon post-sentence events, actual or suggested. Why then, one might ask, would the Court not examine all cases in which there has been a family bereavement, for example, making imprisonment more difficult to bear; where matrimonial difficulties have arisen; where the prisoner suffers adjustment trauma greater, by reason of his particular characteristics, than the next prisoner; where he suffers illness, whatever that illness might be; where there arises tension between a prisoner and the officers supervising him; where, in the case of a foreign prisoner, political events in his home country augment his anxieties; where he becomes the subject of bullying for one of any number of reasons? The Court would then not truly be engaged in review of sentencing, but in post-sentence supervision, an exercise which is not the Court's province, but which is the province of those into whose hands the legislature has entrusted such matters and which, in appropriate instances, is properly the subject of the exercise of the executive's prerogative of mercy. Indeed, if this Court is to examine post-sentence disabilities suffered by a prisoner, in order to assess whether those disabilities render the term of imprisonment more harsh than may have been contemplated by the sentencing judge, one might ask why, in logic, this Court should not also routinely examine his progress in prison, to determine whether he has by reason of his imprisonment seen the error of his ways, and demonstrated the prospect that he will not offend again. See R v Waddingham [1983] 5 Cr App R (S) 66. And if this Court is to say that the sentence is to be reduced because, today, the conditions of confinement are onerous, is the matter to be brought back to the Court because, next week, the conditions of incarceration have been alleviated because of some new or unexpected development?

29. The fundamental function of the appellate court is to determine whether the exercise of the judge's sentencing discretion and powers has been appropriate and, in performing that function, it looks primarily to the offence itself and to the circumstances which presented themselves to the judge at the time of sentence. In so far as appellate courts have been prepared to give effect to events since the date of sentence, they have done so because policy, and the exigencies of particular cases, have so dictated in limited circumstances. In other words, the circumstances in which the Court has been prepared to act upon post-sentence factors do not represent a contraction from some original approach in which the Court of Appeal examined all matters up to the date of appeal, including the way in which the prisoner has come to terms with his incarceration. Rather, those circumstances represent an expansion of an appellate function which, in its essence, is a function of review. Were it otherwise, the suggested course, that the Court of Appeal is bound to give weight to all post-sentence developments would result in the oddity and the injustice that any difficulties encountered by a prisoner within the twenty-eight days allowed for an appeal, would be examined by the Court, whereas solitary confinement or illness, or whatever other problem, arising on the twenty-ninth, would not.

Article 14 ICCPR

30. There was a further contention, of a fundamental kind, advanced by Mr Griffiths at the hearing on 14 May 2002, a belated submission which necessitated an adjournment. The submission is based upon article 14 of the ICCPR, and the contention is that this Court is, by reason of that article, imported as we know by Article 39 of the Basic Law, bound to give effect to mitigating circumstances arising after sentence by the lower court, rather than "shuffle it off to the executive", as it was put. In support of the contention, Mr Griffiths cited a recent judgment of the European Court of Human Rights, V v United Kingdom, 30 EHRR 121.

31. Article 14(1) provides that :

"... In the determination of any criminal charge against him ... everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law...."

Article 14(5) of the ICCPR states that :

"Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."

These provisions are reflected in articles 10(1) and 11(4), respectively, of the Hong Kong Bill of Rights Ordinance, Cap 383.

32. Mr Griffiths relies on article 14(5) in support of his contention that the sentencing process is not concluded until determination of an appeal. It follows therefore, according to the argument, that "the Appeal Court by reason of the provisions of the ICCPR is bound to assess sentence at the conclusion of the appeal, and to do so upon the basis of the facts as they are then known to be". The further argument is that the phrase "determination of a criminal charge" in article 14(1) includes the appellate process, and that "independent" means independent of the parties to the case and to the executive. It is not for the executive to be involved in any part of the sentencing process.

33. Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides, in so far as is relevant, that :

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...."

The applicability of article 6(1) fell under scrutiny in V v United Kingdom. Mr Griffiths relies in particular upon a passage in the judgment, at page 185, para. 109, that :

".... In criminal matters, it is clear that Article 6(1) covers the whole of the proceedings in issue, including appeal proceedings and the determination of sentence. ...."

It follows from this, he contends, that this Court is bound to take into account, and give effect to, events since sentence in the court below. It follows also, he suggests, that the Court's role is, by reason of the ICCPR, not solely a review body; it looks at matters afresh. Whereas Sze Tak Hung suggested that a court was able to take into account and give effect to post-sentence events, the Court of Appeal was now bound to do so.

34. Article 14(5) does not, in our judgment, advance the applicant's case. The article cements the offender's right to have his sentence reviewed by a higher tribunal. Apart from commenting that the article by its terms recognises the nature of the appellate function as that of a review body, it suffices to say that this applicant has that right and is, by this application, exercising it. We accept that for the purpose of article 14(1) "the determination of [a] criminal charge" includes sentence and the appeal procedure. But article 14 does not change the function of the first instance sentencing court, nor the function of this Court in reviewing sentence. So, for example :

"The requirements of fairness will not necessarily be the same on appeal as at first instance; the manner of application of Article 6 to appellate proceedings depends on the special features of the proceedings involved, seen in their domestic law context, and taking account of the role and functions of the appeal court."

(Human Rights Practice, Jessica Simor & Ben Emmerson QC, para. 6-161.)

35. To sentence an offender to a term of imprisonment is to set the term of imprisonment in respect of an offence, beyond which term an offender may not lawfully be detained for that offence. By contrast, events occurring after the setting of the term are, generally, divorced from the offence, the circumstances in which the offence was committed, and factors peculiar to the offender which render the commission of the offence less culpable than in another offender. Questions of regulating the prisoner's life in custody; of assessing whether his adjustment to prison life is particularly difficult (an assessment which, to a material degree, is an exercise in comparison); consequential, and perhaps periodic, changes to his custodial regime to render fair the circumstances of his incarceration; and decisions whether conditions have become such as to warrant early discharge - these judgements and assessments are more appropriately the province of those whose job and experience it is to supervise, and to compare, and to adjudge progress, rather than to fix tariffs for offences. It is in the recognition of these different functions, and for the reasons earlier explained, that the first instance court itself will generally not have regard to anticipated post-sentence conditions in prison or, for that matter, to prison conditions or adaptation difficulties in prison encountered whilst awaiting trial or sentence. Mr Griffiths contends that had the judge at first instance in this case been aware that the applicant would be the subject of assaults and then in protective solitary custody, he would not have imposed the sentence he did. We do not agree, for that judge's proper approach would then have been to sentence on the footing that such matters are generally not for him. The point is this, that this Court is not in this case declining to reduce the sentence merely because the applicant prays in aid an event since sentence at first instance, but, more particularly, because the matter which the applicant prays in aid is not one which a sentencer will normally take into account, and because the applicant's own circumstances are not such, in our judgment, as to warrant a departure from that general approach.

36. In that Mr Griffiths argues, next, that there is no remedy which the executive can lawfully provide to the applicant because it is precluded from entering upon the sentencing arena, the premise is, with respect, flawed, for we are satisfied that, in deciding whether the sentenced prisoner's circumstances since sentence are such as to justify earlier release, the executive is not engaged in a sentencing exercise.

37. The legislative and factual framework within which the Home Secretary in V v United Kingdom was acting was materially different. In that case, the applicant, aged 10 years at the date of the offence, had been convicted of the murder of a two-year-old boy. The trial judge sentenced him, and another, to detention during Her Majesty's pleasure. The Home Secretary, however, had the power, which rested in him alone, to set a tariff, meaning a period which represented the minimum term the applicant had to serve before the elements of retribution and deterrence could be treated as satisfied. One issue for the Court was "whether the tariff setting procedure in respect of young offenders detained during Her Majesty's pleasure amounts to the fixing of a sentence and falls within the scope of Article 6(1)" (page 186, para. 109). The Commission had held that in fixing the tariff, the Home Secretary was "fixing the punitive element [and that] the punitive element must be regarded as part of the sentencing procedure ...." (page 162, para. 135), (Emphasis added). The Court agreed, holding that in fixing the tariff the Home Secretary was engaged himself in a sentencing exercise (page 186, para. 111); and it is relevant to note the essence of applicant's submission to the Commission, that :

".... the process of fixing a tariff is in reality, if not also in form, a sentencing exercise which should attract the safeguards of Article 6(1) of the Convention. [The applicant] argues that the tariff fixes the maximum period to be served for the purposes of punishment and deterrence: it is fixed at the outset of the sentence on the basis of facts known at the time of sentence and represents the minimum period of detention that must be served irrespective of subsequent progress (save in exceptional cases). ...."

(Page 160, para. 131)

It is also instructive to note the submission of the UK Government to the Commission in that case (page 161, para 134) by which it actually referred to the tariff as representing the "appropriate punishment" for the offence, and the Commission's comment that :

"[The tariff] must therefore be regarded as punitive in character and based on the finding of guilt in the criminal proceedings. There is also no doubt as to the importance of what is at stake-the minimum period of detention which, save in exceptional circumstances, must be served before release becomes possible. In the applicant's case, the tariffs proposed have varied between eight and 15 years. The procedure may therefore be considered as imposing a penalty of considerable severity.

135. The Commission further observes that the domestic courts have also recognised that the tariff-fixing procedure is, in its essential elements, a sentencing exercise. ...."

38. There is, in the present case, a cardinal difference. The District Court was engaged in determining the maximum period of detention which this applicant must serve for his offences, and this Court is engaged in reviewing whether that maximum term was or was not manifestly excessive. In the exercise of its powers of remission of part of a sentence because of post-sentence events, the executive is self evidently - self evident from the very description of the exercise - not engaged in the sentencing or appeal process. The executive does something quite different. It decides whether, despite the determination of the criminal charge, and despite the fixing of the tariff by the courts, there are circumstances which warrant the exercise of the executive's mercy by reason of events subsequent to sentence. That is not part of a sentencing exercise.

39. We are, accordingly, satisfied that article 14 of the ICCPR does not alter the role of this Court as has been suggested; nor deprive the executive from examining post-sentence conditions of imprisonment in order to determine whether they warrant the exercise of the executive's power to order release on a date earlier than might otherwise be required by law; nor oblige this Court to take into account events after sentence in the court below. Furthermore, we are satisfied that this particular case does not require us to take an exceptional course. It remains open to the applicant to bring his position to the attention of the executive authorities.

Conclusion

40. This is a case in which it is appropriate to grant the applicant leave to appeal against sentence. However, treating the hearing as the appeal, and for the reasons we have provided, the appeal is dismissed.