LUI TAT HANG LOUIS v. THE POST-RELEASE SUPERVISION BOARD AND ANOTHER

HCAL154/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO.154 OF 1999

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J U D G M E N T

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1. In 1986 this applicant was sentenced to a term of 22 years' imprisonment, a term that was reduced in 1987 to 20 years. Rule 69 of the Prison Rules then in force provided that :

"(1) A prisoner serving a sentence of imprisonment for an actual term of more than 1 month may, on the ground of his industry and good conduct, be granted remission in accordance with the provisions of this rule ...

(2) The remission granted under this rule shall not exceed one-third of the total of the actual term and any period spent in custody taken into account under section 67A of the Criminal Procedure Ordinance."

So the remission is to be one that shall not exceed one-third of the term imposed, taking into account such periods in custody before sentence as are required by law to be taken into account. Assuming a one-third remission in accordance with this provision, I am told that the applicant was due for release on 25 January 1999.

2. In November 1996, there was enacted the Post-Release Supervision of Prisoners Ordinance, Cap.475 ("the Ordinance") which established a Post-Release Supervision Board ("the Board") whose function was to decide whether any person to whom the Ordinance applied shall be granted early release under supervision. If a favourable decision was made, the Board could order that there be early release subject to supervision. And if a supervision order were made, it could be subject to such conditions as the Board considered to be necessary or desirable, and breach of such conditions attracts the possibility of recall to prison.

3. On 11 January 1999, the Board made a supervision order in respect of the applicant and on 25 January 1999, the Commissioner of Correctional Services decided to execute that order. The applicant was released on 25 January 1999.

4. The applicant now applies for leave to apply for judicial review of those two decisions, that is, the making of the supervision order and the decision to execute it. There is also an application for an extension of time in which to make the application. That is because the notice of application for leave was filed only in December 1999, almost one year after the decisions which it is sought to impugn.

5. I did not give leave on a mere consideration of the papers, but asked to hear the application presented orally, and for that course I gave two reasons :

(1) It appeared to me that there had been inordinate delay in the making of the application; and

(2) I noted that the supervision order was due to expire in January 2000, and it appeared to me therefore that the application was to that extent academic, for which reason I doubted that it ought to be entertained.

It is against that background that the matter comes before me today for oral argument on the question of leave. The putative respondents appear by counsel and oppose the application for leave on the basis of delay, the suggested academic circumstances of the application, and upon the merits.

The merits

6. The case is put in this way : that by reason of the operation of the Ordinance, the imposition of the supervision order amounted to a penalty heavier than that imposed by the sentencing court; a penalty heavier than that which was available at the time of the commission of the offence. That is because at the time of commission of the offence, the power to impose supervision orders with their attendant conditions and the right of recall to prison which accompanied a breach - those powers were not available, and at the time of commission of the offence a remission of one-third of a sentence imposed by a court was, subject to the question of good conduct, a matter provided for by statute and was in effect automatic. It is said that in this way, the statutory scheme enabling the imposition of such orders in the case of those sentenced before the effective date of the Ordinance is a retrospective scheme which creates a penalty not available at the time of the commission of the offence, and is therefore contrary to the provisions of article 12 of the Bill of Rights Ordinance, and article 15 of the International Covenant on Civil and Political Rights which is in turn enshrined by the Basic Law. The issue is put in this way by Ms Ng who appears on behalf of the applicant : the main issue of the present proceedings is whether it is unlawful to apply the Post-Release Supervision of Prisoners Ordinance and impose a supervision order on the applicant who committed his offence and was convicted and sentenced before the enactment of the Ordinance, in that this imposes a heavier penalty on him retrospectively within the meaning of article 12 of the Bill of Rights Ordinance or article 15 of the International Covenant on Civil and Political Rights enshrined under article 39 of the Basis Law of the Hong Kong Special Administrative Region.

7. Mr Wong, on behalf of the respondents states that leave should not be given. In the first place, he points to the fact that the Ordinance in its operation allows for a supervision order only relating to remission earned after the Ordinance came into effect. That does not in my judgment entirely deal with the point because the question raised by Ms Ng is whether there should be any restriction on freedom not envisaged by law at the date of the commission of the offence and, clearly, supervision orders were not envisaged.

8. Then it is said by Mr Wong that a supervision order is not a punishment or sentence going beyond the sentence of the court, but is a matter of execution of the sentence as opposed to the penalty that was imposed by the court. I think there may be some force in this argument, but I am not prepared to dismiss Ms Ng's submissions at this stage as being submissions that do not meet the very low threshold on which leave for judicial review is predicated. As seems suggested by the remarks in R v. Secretary of State for the Home Department, Ex parte Doody [1993] 3 WLR 154, it might be argued that concealed within the sentence is a reality that embraces the release element, for in reality just how long a prisoner must serve is a matter of immediate importance at that date; certainly a matter of importance to the prisoner.

9. The test embraced by the courts of Hong Kong for the grant of leave is, at present, whether there is material before me which might on further consideration demonstrate an arguable case for the grant of relief. It seems to me that that threshold is crossed.

Delay

10. The delay in this case is unfortunate and troublesome, but it is not delay that can be laid at the door of the applicant. He in fact applied for legal aid as long ago as August 1998 : that is, before the supervision order was put in place and in anticipation of it. Legal aid was refused on the ground that the order had not yet been made. In February 1999, he appealed against that refusal of legal aid, and after that the matter was adjourned for the advice of counsel, and legal aid was granted in August 1999. Counsel was assigned in October and the application filed in December. Prior to the grant of legal aid, there was discussion between the legal aid authorities and the Board about the possibility of withdrawing the order, but the Board refused to do so. So the Board has been aware of the likelihood of challenge and the applicant has actively pursued legal aid from the outset. Much of the delay is difficult to justify from the point of view of those acting for the applicant, but given the fact that the applicant has been himself active and given that the issues involved are of some public importance and are very likely to be the subject of future applications in any event, I shall order that the time for making the application be extended until the date of the notice of application for leave.

The question of hypothetical or academic issue

11. Given the fact that the supervision order has now expired and was close to expiry at the date of the notice of application, the question is whether the court should in the exercise of its discretion entertain this application. "Courts are wary of questions which appear academic or hypothetical and often decline to consider issues which lack real practical significance in a particular case." (See Fordham Judicial Review Handbook, 2nd Edition, p.92)

12. The House of Lords has recently drawn a distinction in the context of this issue between disputes concerning private rights on the one hand and, on the other, issues involving a public authority on a question of public law. In R v. Secretary of State for the Home Department Ex parte Salem [1999] 1 AC 450 at 456, Lord Slynn stated that :

" ... I accept,... that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. ...

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future."

13. Other cases of similar sentiment have, it appears, been cases on appeal where the absence of a definitive statement by the appellate court will leave a tribunal or decision-making body bound by a decision of a court of first instance, although that is not always the case - see, for example, R v. Horsferry Road Magistrate Court ex parte K [1997] QB 23. I also note from the arguments of counsel before the House of Lords in Ex parte Salem, the concession by counsel for the Home Secretary that the power to hear public law cases that raise a point of general public importance, even though the applicant no longer has any interest in the matter, was said to be a power vesting in the High Court. And I note, too, that when standing is an issue in such applications, the courts have shied from a technical stance and have tended to latitude in cases where "there is good ground for supposing that a government department ... is transgressing the law ... in a way which offends ... thousands of ... subjects". (per Lord Denning MR in R v. Great London Council ex parte Blackburn [1976] 1 WLR 550). It is also clear from the discussions of the academic writers even before Salem that the courts were prepared to deal with a matter even if as between the parties the question was moot, if nonetheless the issue was one of general importance (see, for example, Supperstone and Goudie Judicial Review 2nd Edition paragraph 14.22).

14. In this case there can be no question but that there are many others who are affected by the same point, nor any question in my mind but that this point will soon be brought to the attention of this court for determination by at least one or more other prisoners if I do not decide this case. It is unnecessary for me to know precisely how many such persons affected by the scheme there are, although Mr Wong has given me a figure of those in respect of whom supervision orders have already been made, who were sentenced before the Ordinance came into operation, and the number is large and will of course grow. One may assume by mere reference to the nature of the issue that there are many. It is said that no one has yet complained. But experience dictates, and Mr Wong does not seriously contend otherwise, that the point having now been raised, it will be raised again and it will be raised very soon. What will then happen, were I not now to grant leave, is that legal aid will be granted afresh, counsel instructed afresh and there will be another application for leave to apply for judicial review, perhaps opposed; and that all the public funds now expended will have been wasted unless this court decides to grasp the nettle. The matter also affects the freedoms of the subject to the extent that supervision orders impose restrictions on those released and may also result in recall to prison. I should add that resolution of the issues put forward in this case do not depend on the particular facts of this case as opposed to the facts of other cases in this category likely to come before the court. In other words, I am not in fact dealing with a purely academic point; I am dealing with a present and practical issue. The view I take at this stage is that the court should grant leave despite the fact that the point as between the applicant and the respondents appears academic. This does not preclude the respondents from argument at the substantive stage, and on further evidence if so advised, that relief should not in the exercise of the court's discretion be given.

Conclusion

15. I shall allow the applicant to amend the notice of application for leave to seek a declaration, in place of the declaration now sought, that it was unlawful to apply the Ordinance and impose a supervision order on the applicant who committed his offence and was convicted and sentenced before the commencement of the Ordinance. Leave to apply for judicial review for that declaration is therefore granted. I shall not, however, grant leave to apply for an order of certiorari, or for an injunction, since those orders would indeed be wholly academic.