SECRETARY FOR JUSTICE v. CHAN CHUEN

HCMP2248/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.2248 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 sentences of the respondent Chan Chuen imposed by the High Court in High Court Criminal Case No. 122 of 1973.

Background

2. On 19 February 1974, the respondent appeared before The Hon. Chief Justice Sir Geoffrey Briggs charged with 11 counts of rape.  He pleaded guilty to eight counts and the Crown entered a nolle prosequi in respect of the three remaining counts.  The offences occurred between 11 April 1972 and 25 September 1973.  The victims were all young girls aged between 8 and 13.  The modus operandi was similar in each case.  The respondent would invariably approach the victim from behind, seized the victim around the neck and then raped her.  All victims suffered physical injuries to their genitals that required hospitalization.  In at least three of the cases, medical evidence suggested that the respondent had used considerable force in assaulting the victims.  Several of them complained that they became dizzy or fainted when the assault took place.

3. 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.

4. 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.

5. 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.

6. 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.”

7. 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.

8. 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 1974.

9. On 5 March 1974, the Chief Justice sentenced the respondent to be imprisoned for life for the counts of rape to which he had pleaded guilty.  In so doing, he observed :

“The accused has pleaded guilty to eight counts of rape.  This is a most serious case.  The offences occurred between 11^th April, 1972 and the 25^th September, 1973.  Three of the cases occurred between the 11^th April and the 26^th June, 1972; the other five cases between the 28^th February and the 25^th September, 1973.  The girls in question were aged between 8 and 13 years.

The modus operandi was similar in each case.  The accused approached the victim from the back, seized her round the neck and raped her.  On at least one occasion, according to the victim, he employed a knife in order to frighten her to comply with his wishes.  In several cases the victim had to spend some days in hospital and in nearly every case the medical report shows that there was severe bruising to the neck as well as injuries to the private parts.  And in three of the cases there was medical evidence that the accused had used considerable force when the girl was seized by the neck.  Several of the victims complained that they were so frightened by the accused that they became dizzy or fainted when he assaulted them.

A report from a psychiatrist shows that the accused is a man of but little intelligence.  However, it is clear from the evidence and from the probation officer’s report that he knows the nature and quality of his acts and the difference between right and wrong and a plea of guilty and a plea of not guilty.  It is true that the accused has pleaded guilty to these charges.  It is also true that this means that these girls would not have the embarrassment of having to give evidence in public a second time.  However, it would appear that the principles laid down in Fong Lung Fai v The Queen (1968) HKLR 249 apply in this case.  These offences are very serious in themselves.  It is necessary to protect society from the accused.  It is obvious, although the accused is not suffering from any mental disorder, he is a man who needs to be protected from himself and one from whom society is entitled to be protected.

In think the correct sentence, therefore, is an indeterminate sentence and I order that CHAN Chuen be imprisoned for life on each of the counts to which he has pleaded guilty.”

10. On 11 June 1974, the respondent’s application for leave to appeal against the sentences of life imprisonment was dismissed by the Court of Appeal (Criminal Appeal No. 175 of 1974).

Meaning of “minimum term”

11. Under the present legislation, 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.”

12. 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)

13. 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.”

14. 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

15. 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.”

16. 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

17. 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.

18. 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”

19. The respondent was born in 1944 and had a clear record before the present convictions.  He has been in custody since 1973.  The respondent has been in custody since his arrest on 25 September 1973.  He has now been detained for 31 years.

20. Based on the contents of the psychiatric report prepared by Doctor C. H. Yuen dated 16 December 2004, the respondent was diagnosed to be suffering from paranoid reaction, a mental condition for which he received treatment in the Siu Lam Psychiatric Clinic between 1982 to 1996.  The respondent was transferred to the Stanley Prison in March, 1997 but he had problems of adjusting to the new environment and all methods to try to help him were futile.  He was transferred back to the Siu Lam Psychiatric Centre in April 1997.  The doctor observed, towards the end of the report, that he noted a hostile feeling displayed by the respondent and he found this to be disturbing.  Such behaviours indicated, according to the doctor, that he may have another relapse of his mental illness.  The prognosis of the respondent’s psychiatric condition is poor and the doctor recommended that he should not be discharged in the foreseeable future. 

21. The observations by the clinical psychologist, Doctor Judy S.H. Hui is equally unpromising.  In her report dated 18 December 2004, Doctor Hui noted that the respondent refuses to participate in any rehabilitation program.  When enquired about the offences, the respondent showed little sympathy towards the victims.  More often than not he simply refused to discuss about the series of offences.  The respondent had displayed very little motivation to rehabilitate himself.  In the last paragraph of the report, Ms Hui observed :

“…He is in need of intensive psychological intervention for reducing his risk of reoffending and improving his social adaptation.  His reluctance to receive external help from mental health professionals and limited motivation to improve himself will make further progress difficult.”

22. 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.

23. The Court of Appeal in Cheung Lai Man furtherobserved that the original minimum term of 20 years’ imprisonment was excessive on the basis that if one is to work backwards, it was equivalent to an effective starting point of up to 45 years’ imprisonment.

24. The circumstances of the present series of offences are much more serious than Cheung Lai Man.  The respondent was a serial rapist praying on pre-pubescent girls who were all subjected to threats and assaults.  In some cases the victims had to be hospitalized for treatment.  I consider these to be offences of the most serious kind and in the light of the Court of Appeal’s observation in Cheung Lai Man, a starting point of between 18 to 20 years would not have been inappropriate.

25. As the respondent was sentenced in 1974, he should be sentenced therefore in accordance with the sentencing guideline and practice applicable at the time.  In R. v. Chan Chi Lai and others [1976] HKLR 381, the 1^st appellant, aged 18, was sentenced to a total sentence of 14½ years for two offences of rape and multiple offences of robbery and false imprisonment.  The 14½ year term comprised consecutive sentences of 6¾ years for the robbery and false imprisonment counts and 7¾ years for the rape counts.  The Court of Appeal reduced the 7¾ years to one of four years on the basis that the sentence was excessive in view of the age of the appellant.  The court however noted that :

“This is not to excuse his conduct which can only be condemned in the strongest term…”

The present offence in my view would have attracted a sentence of 12 years for each count had the respondent been sentenced in 1974.

26. At the time of the respondent’s sentence in 1974, he would not have enjoyed a 1/3 discount for his plea as this approach only became consistent in the middle of the 1990s.  Assuming that he is given a full 1/3 discount for each count, the sentence after the discount would be eight years’ imprisonment for each count.  A global sentence of 35 years after discount, in view of the series of absolutely deplorable offences, would have been the appropriate total prison term for the respondent.

27. As indicated earlier, the contents of the Correctional Services Department report, the psychological report and the psychiatric report are unpromising.  The respondent was reluctant to participate in any of the rehabilitation programs offered and there is no sense of remorse detected from him.  I see no other reasons that the sentence should further be reduced.

28. A prisoner would usually be entitled to up to 1/3 discount of his nett prison term pursuant to rule 69(1) of the Prison Rules of the Prison’s Ordinance, Cap. 234 for industry and good conduct.  Bearing that in mind I determine the minimum prison term the respondent must serve for the eight rape counts to be 23 years.