SECRETARY FOR JUSTICE v. CHEUNG HING BIU

HCMP2250/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.2250 OF 2004

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J U D G M E N T

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1. This is an application by the Secretary for Justice pursuant to section 67C(1) of the Criminal Procedure Ordinance, Cap. 221 (“the Ordinance”) for a determination under section 67C(3) of a minimum term for the sentence of the respondent Cheung Hing Biu imposed by the High Court in HCCC106/1983.

Background

2. The respondent pleaded guilty to eight counts of rape and eight counts of robbery in the Magistracy and was committed to the High Court for sentence.  On 2 June 1983, he was sentenced by Barker JA (sitting as an additional judge of the High Court) to concurrent prison terms of 12 years’ imprisonment for the robbery counts and life imprisonment for each of the rape counts.  At the time of this application, the respondent has been in custody for 22 years.  

3. At the sentencing hearing the respondent had asked the court to take into consideration two further incidents of rape, 11 incidents of indecent assault and another 22 robberies.  The factual basis of the plea and sentence does not appear in the case file nor can it be found in any of the documents submitted by the parties.  There are, however, the witness statements of the victims of the rape counts available before this court.

4. In 1996 section 67B of the Ordinance was enacted.  Under that section a sentencer who imposed a discretionary life term was required to at the same time of the sentence state a minimum term of imprisonment that the prisoner must serve.  This enactment, however, did not affect those, the respondent included, who were sentenced to life imprisonment for conviction of offences other than murder.

5. In 1997 the former section 67C of the Ordinance was enacted.  Under that section the Chief Executive was empowered to determine, on the recommendation by the Chief Justice, the minimum term to be served by a prisoner who was then serving a discretionary life sentence.  In 1998 the Chief Executive duly made a determination pursuant to that section of the Ordinance.

6. In Yau Kwong Man & Others v. Secretary for Security [2002] 3 HKC 457, Hartmann J held that the powers vested in the Chief Executive under section 67C of the Ordinance were judicial powers and hence unconstitutional when they were exercised by the executive.  The result of the decision was such that the respondent, together with a number of other prisoners who were serving a discretionary life term imposed before 1996, were left in a position where they did not have a lawfully determined minimum term.

7. The legislature acted promptly to remedy the situation.  The Criminal Procedure (Amendment) Ordinance came into operation on 15 July 2004.  The former sections 67C to 67E of the Ordinance were repealed.  The new sections 67C(1) and (3) provide :

“	(1)	As soon as practicable after the commencement of this section and in any event within 6 months after such commencement, the Secretary for Justice must, in respect of each prescribed prisoner, apply to the court for a determination by a judge under this section.
	(2)	…
	(3)	Subject to subsection (4), the judge hearing an application under subsection (1) or (2) must determine the minimum term that the prescribed prisoner must serve for the relevant offence.”

8. A judge of the Court of First Instance is empowered under the new legislation to determine the minimum term to be served by prescribed prisoners who were sentenced to a discretionary life term.

9. The object of the present exercise is therefore for this court to determine the minimum term which the respondent must serve for the eight rape counts for which he was sentenced to life imprisonment in 1983.

10. At the conclusion of the sentencing proceedings, Barker JA made the following remark :

“

When you will be released from your sentence of life imprisonment is a matter not for the Court but for the Executive.  I merely add this : that if and when the powers that be do consider the question of your release, I recommend that you should not be released for a period of at least twenty-five years.”

11. On 23 June 1983, the respondent applied for leave to appeal against his sentence.  The application was dismissed by the Court of Appeal on 19 January 1984.  In the judgment of the court, Silke JA observed :

“	1.	Cheung Hing-biu … was committed for sentence upon his pleas of guilty to a total of 16 offences of rape and robbery.  In each case the offences were combined.  They were those of the 20th October 1982; the 8th October 1982; the 23rd September 1982; the 7th September 1982; the 17th July 1982; the 6th March 1982 and the 19th April 1982.  The offences in March and April were committed against the same person.
	…
	3.	The Crown at that hearing made reference to a number of other offences which might be taken into consideration….
	…
	8.	… the Applicant asked for two more rapes, eleven indecent assaults and thirty-four further robberies to be taken into consideration.
	…
	50.	The offences took place over a period from mid 1980 to the 10th November 1982 and all were in housing estates in East Kowloon.  In order of frequency, they took place at Sau Mau Ping; Lam Tin; Ngau Tau Kok; Tze Wan Shan; Tung Tau and Wong Tai Sin.
	51.	The applicant gained entry to flats in which there was a woman alone or with children, either with a key or through unlocked doors in the mid-morning or mid-afternoon.  He also waylaid victims in corridors or lift lobbies.  He wore a pair of woman’s tights as a mask and a pair of woman’s stockings as gloves.  He used a small knife or triangular file to threaten his victims.
	52.	While in each incident the actual degree of violence was small yet in each the knife was used to threaten and, when a victim evidenced reluctance, verbal threats were used, slaps were administered and women were pushed around.
	53.	Two women were cut accidentally while the rapes were taking place.  One girl who struggled received a cut upon her finger.
	…
	56.	The Applicant kept a diary with a full record of his criminal acts.  He was arrested through the bravery of the young woman whom he attacked on the stairs in Lam Tin Estate.  It was she who received a cut finger.”

12. In the concluding paragraphs of the judgment, the judge said :

“	79.	The crimes committed by the applicant merited condign punishment.  The public is entitled to be protected from the depredations of a man such as this and it is the duty of the Courts in passing sentence to reflect this and also to reflect the abhorrence the community has for the nature of these offences.
	80.	If a determinate sentence were to be considered then one in the region of thirty-five to forty years would be properly in contemplation.  When one goes into the range of thirty years and over then an indeterminate sentence must obviously lie for consideration…
	81.	In the circumstances of this case the only possible sentence was the one imposed.”

Meaning of “minimum term”

13. This court is required to determine a minimum term for which the respondent must serve for the eight rape counts on an application by the Secretary for Justice.  The expression “minimum term” is not defined in the Ordinance but defined in section 4 of the Long Term Prison Sentences Review Ordinance, Cap.524 as :

“	in relation to a sentence, means a minimum term of imprisonment specified or determined under 67B or 67C of the Criminal Procedure Ordinance.”

This definition offers very little by way of explanation as to the meaning of the words.  The term however, received judicial consideration in HKSAR v. Hui Chi Wai (No.2) [2003] 2 HKC 582 at 591B where Stock JA said :

“

… [A minimum term] is not designed to provide a sentence of imprisonment in lieu, as it were, of a life term.  It is designed to draw from the court a minimum term of years which the convicted person must actually serve before release, remembering however, and this is an important caveat, that it is inherent in the phrase ‘minimum term’ that the court does not say that that is the stage at which the convicted individual is to be, or even should be, released.  Those who are entrusted with the function of monitoring prisoners serving indeterminate sentences, or long term determinate sentences, and with making recommendations, where appropriate, for release or for the conversion of indeterminate terms to determinate ones, may very well in individual cases decide against the prisoner’s release at the end of the minimum term and, indeed, may decide that release is not permissible for some considerable time beyond that date, or indeed at all.”

14. The term was also considered by Hartmann J in Yau Kwong Man and Ors v. Secretary for Justice [2002] 3 HKC 457.  Having reviewed the English practice the judge observed :

“

Under the legislation, indeterminate sentences are now split into two periods : the initial minimum period to reflect retribution and deterrence and thereafter the remainder of the sentence in which rehabilitation is demonstrated.  There is therefore a balance achieved … between the punitive demands of the indeterminate sentence and the welfare of the offender.” (page 489 D-E)

15. In HKSAR v. Cheung Lai Man [2004] 2 HKLRD 473 at 488, Yeung JA said :

“	97.	A minimum term is therefore a minimum period of sentence to be served as opposed to the period subject to any deductions.
	98.	The purpose of a discretionary life sentence with a minimum term is twofold.  The minimum term is to serve the purpose of retribution and deterrence, to reflect the culpability of the accused.  The life sentence is with the additional aim of protecting the public.  Therefore, in setting the minimum term, the Court must have regard to the usual mitigating factors.  The Court should also take into account the possible remission for industry and good conduct.”

16. It could be distilled from the above passages that the “minimum term” is the prison term imposed on the prisoner to reflect the gravity of the offences he committed and to reflect retribution and deterrence.  It does not follow, nor is it specified anywhere under the legislative provisions that the prisoner would be released after having served the minimum term.  One needs to look at the wider legislative scheme as to what would happen to a prisoner at the expiration of the minimum term.

The Long Term Prison Sentences Review Board

17. The Long Term Prison Sentences Review Ordinance, Cap.524 confers wide powers on the Long Term Prison Sentences Review Board (“the Board”), a body appointed by the Chief Executive.  The Board is empowered to conduct reviews of prisoners serving indeterminate and long-term sentences.  Section 12(2) of that ordinance expressly provides :

“

(2)

On reviewing the sentence of a prisoner, the Board is not authorized to order the early release of a prisoner before any minimum term applicable to the prisoner has been served.”

18. For those prisoners who had already served the minimum term, the Board will consider at regular intervals and make recommendation to the Chief Executive as to how best to deal with the prisoner.  Such recommendations may include substituting a determinate sentence or releasing the prisoners in appropriate cases.  The effect of the present legislative scheme is that where a sentencing judge saw fit to impose a discretionary life sentence, he is required, under section 67B of the Ordinance, to recommend a minimum term for which the prisoner must serve.  The length of the minimum term is determined by reference to the gravity of the offences and with appropriate consideration given to the factors of deterrence and retribution.  That being the case the judge hearing an application under section 67C, in my view, should place himself into the position of the original sentencing judge and recommend a minimum term based on similar considerations.

The court’s approach

19. A considerable time might have elapsed between the original sentence and the application under section 67C.  There might have been significant developments since the respondent’s incarceration so that section 67C(5)(a) provides the judge may :

“	… take into account any material submitted to him by the Secretary for Justice or the prescribed prisoner that is, in his opinion, relevant to the determination.”

By virtue of the above provision, the judge making the determination may take into account any material which have become available to him since the original sentence was passed.  The relevant material must include Correctional Services reports, psychological and psychiatric reports and submissions by the respondent himself.  The test is one of relevance to the determination.  The categories of relevant materials are not closed and would be peculiar to each respondent.

20. The judge in the present exercise is however expressly precluded from taking into account the previous recommendation or the previous determination by the Chief Executive and the Chief Justice (section 67C(5)(b)).  However, in cases where there had been an appeal against the original sentence, this court is bound by the judgment of the Court of Appeal.  Where the Court of Appeal had expressed a view or made observations as to what the minimum time to be served by the prisoner should be, the court should give regard to those views and observations.

The appropriate “minimum term”

21. At the time of the respondent’s conviction for the present offences he was 27 years of age.  He already had three previous convictions dating from 1974.  His last conviction before the present series of offences was in 1980 for theft and obtaining property by deception for which he was convicted and discharged.

22. According to the latest psychological report dated 1 January 2005 prepared by Mr Francis Butt, Clinical Psychologist for the Correctional Services Department, the respondent had undergone various psychological counseling programmes.  Between July 2002 and February 2003, the respondent enrolled in a treatment programme in the Sex Offender Evaluation at Siu Lam Psychiatric Centre and he was reported to have completed the programme with positive commendations.  The respondent has demonstrated good effort in learning to cope with his psychological problems effectively.  On the issue of risk assessment, however, the respondent is considered as someone :

“	… whose possibility in resorting to violence to win over personal satisfaction was very likely.”

On the positive side, the psychologist noted that there is a gradual increase regarding the respondent’s healthy sexual regulation, impulse control and mood management.  The clinical psychologist concluded by the following observations :

“

CHEUNG committed a series of robbery rape in his early twenties.  As demonstrated in the overall risk assessment evaluation, his risk of violent and sexual recidivism has been gradually declining in view of his commitment towards positive changes through self reflection and psychological intervention.  Although his prognosis is promising, regular psychological follow-up is still recommended to consolidate his improvement in better preparing him to return to the community if granted the opportunity in the future.”

23. The tenor of the report is clearly one of cautious and guarded optimism. 

24. The report by the Visiting Psychiatrist of Siu Lam Psychiatric Centre Dr S H Lui is less positive.  In his opinion, the respondent :

“

… is not suffering from mental illness except what may be described as a dissocial personality (psychopathic) disorder, marked by self-centeredness, lack of feeling for other people, impulsivity and inability to delay pleasure.  The psychopathic condition is an enduring one and it will be a long time if it ever matures.”

25. In Cheung Lai Man (supra), the Court of Appeal set aside three concurrent terms of life imprisonment imposed on the appellant on three counts of rape to which he pleaded guilty.  The victims in that case were students aged between 12 and 21 and were attacked while on their way to school.  It was a premeditated and well-planned attack and the assaults were recorded on video tapes that formed part of the appellant’s pornographic collection.  The sentencing judge specified a minimum term of 20 years’ imprisonment.  In substituting a starting point of 18 years for each count of rape, the Court of Appeal gave a 1/3 reduction to reflect the guilty pleas.  The six years on each of the remaining two counts of rape were ordered to run consecutively to the 12 years on the 1^st rape count.  The total sentence imposed on the appellant was one of 24 years’ imprisonment.

26. The Court of Appeal in Cheung Lai Man furtherobserved that the original minimum term of 20 years’ imprisonment was excessive.  If one is to work backwards, and give appropriate discounts for the appellant’s guilty plea and the remission he would have been given under the Prisons Ordinance, Cap. 234, the original sentence was equivalent to an effective starting point of up to 45 years’ imprisonment.

27. If the respondent is sentenced today for the rape offences, each count would have attracted a term of between 12 to 14 years of imprisonment.  These are very serious offences and one could not help to be overcome by a feeling of shock when one looks at the serial nature of the offences.  The 16 offences including those thirty plus offences which were taken into consideration were all committed within an 11-month period in 1982 in housing estates in East Kowloon region.  Another shocking feature of this case is that the respondent had kept a careful note in an improvised diary of his criminal activities.  This document was seized by the police and formed the basis of his prosecution.  There is a total disregard by the respondent of the law.

28. The sentencing judge did not state how he arrived at the recommended minimum period of detention of at least 25 years.  However it can be safely assumed that he must have taken into consideration the totality principle and had given some credit for the respondent’s plea of guilty.

29. If the respondent is sentenced today, I would have no hesitation in imposing a global prison term of 50 years’ imprisonment.  Giving a full one-third discount for the respondent’s plea and that he is entitled pursuant to rule 69(1) of the Prison Rules of the Prisons Ordinance, Cap. 234 to a remission of up to one-third of the total actual prison term for his industry and good conduct, a minimum prison term of 25 years would not be inappropriate.  This, I might add, is in line with the observations by the Court of Appeal when their lordships dismissed the respondent’s appeal against his sentence in 1983.

30. For the reasons given I determine the minimum prison term the respondent must serve for the eight counts of rape to be 25 years.