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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The issue

1. This application for judicial review raises a point of some importance for certain categories of prisoner who, prior to 30 November 1996, were sentenced to terms of imprisonment and were still at and after that date in custody, serving the balance of those terms. On that date, there came into effect the Post-Release Supervision of Prisoners Ordinance, Cap.475 ("the Ordinance"), and it enables the Post-Release Supervision Board ("the Board"), where it considers early release of a prisoner should be granted, to order that that early release should be granted subject to supervision. A supervision order carries with it conditions, and breach of those conditions, or a conclusion that a prisoner is likely to commit an offence, can result in the recall of the prisoner to custody for the remainder, or part of the remainder, of the prison term. Up to the date of the Ordinance, prisoners had come to expect that, after serving two-thirds of such sentence as had been imposed by the court, the balance of that sentence would be remitted, provided that they had been industrious and of good behaviour. That was an expectation arising from implementation of rule 69 of the Prison Rules.

2. The point advanced in this application is that the effect of the new Ordinance, operating retrospectively as it does in that it applies also to those sentenced before its commencement date, is to impose in respect of a pre-Ordinance offence, a heavier penalty than that applicable at the time that the offence was committed; and that there is therefore constituted a breach of art.15 of the International Covenant on Civil and Political Rights ("ICCPR"), and a breach of art.12(1) of the Bill of Rights Ordinance and that in so far as the Ordinance contravenes art.15 of the ICCPR, it falls foul of art.39 of the Basic Law. What is sought is a declaration that it was unlawful for the Board to have imposed the supervision order on this applicant who committed his offence and was sentenced before the commencement of the Ordinance.

The order

3. In 1986, the applicant was sentenced to a term of 22 years' imprisonment for offences of robbery and conspiracy to rob. In June 1987, an appeal by him was partially successful, and the resulting term of imprisonment was 20 years. The latest date for his release was 25 September 2005, and the earliest, supposing one-third remission, was 25 January 1999. In the summer of 1998, a report was submitted to the Board by the Commissioner of Correctional Services. It suggested that a supervision order be made, and that is what happened. Despite an objection by the applicant, the Board issued its order on 11 January 1999.

4. The order was in these terms :

"I HEREBY ORDER that you be subject to supervision upon your release from imprisonment with the following requirements:

(a) The remitted part of your sentence shall be 2435 Days

(b) The period for which this supervision order shall remain in force: 12 Months

The conditions which you shall comply with:

(1) You shall place yourself under the supervision of a supervising officer nominated for this purpose and any other officer replacing him from time to time.

(2) You shall meet with your supervising officer in accordance with that officer's instructions.

(3) You shall inform your supervising officer at once of any changes in your home and office address or any employment particulars including dismissals.

(4) You shall be of good behaviour and keep the peace.

(5) You shall inform your supervising officer of the intention to leave Hong Kong for a specified period or of the intention to take up residence abroad.

(6) You shall reside at an address approved by your supervising officer.

(7) You shall undertake only such employment as approved by your supervising officer.

(8) You must meet with your supervising officer at least once a month.

(9) You shall not, without reasonable excuse, fail to engage yourself in gainful employment in accordance with the instructions of your supervising officer.

(10) You shall not commit any offence against the laws of Hong Kong."

5. On the next page is an order of the Commissioner of Correctional Services. It is that upon the applicant's release, he be subject to supervision by officers on aftercare duties under section 8 of the Ordinance, until 24 January 2000. It follows that the balance of his term, to September 2005, was not subject to any supervision.

The application for leave

6. The application for leave to apply for judicial review was launched on 17 December 1999, and came before me at an inter partes hearing on 14 February 2000. By that date, the supervision period had expired, and there was the question whether it was appropriate for me to entertain the matter at all, not only because there appeared to have been inordinate delay in the making of the application, but because the matter seemed to me to be academic as far as the applicant was concerned. In the event, I decided to grant leave. Although recognizing that to do so was rare in such circumstances, it was nonetheless apparent that the issue was going to be raised again, that it affected others, that it was a question touching upon the liberty of the individual, and that public funds would be wasted if this case were abandoned only with another certainly around the corner. My full reasons for adopting this course are to be found in a judgment I delivered on 14 February 2000.

7. Mr Wong, for the respondent, does not maintain the stance adopted at the leave stage, which was to oppose leave on the basis that the particular case was defunct. He now says that since the court will, in due course, have to rule on the issues which arise in this application, the earlier those issues are decided, the better.

Statutory and constitutional framework

(1) The Prisons Ordinance

8. Section 25 of the Prisons Ordinance, Cap.234, empowers the Chief Executive in Council to make rules providing for the admission and discharge of prisoners, the remission of a portion of their sentences, and a number of other matters. Rule 69 reads as follows :

"69. Remission of sentence

(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:

Provided that this rule shall not permit the reduction of the actual term to less than 31 days.

(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 (Cap.221) (which relates to the computation of a sentence of imprisonment).

..."

9. Upon or after enactment of the Ordinance, a further rule was made, namely, rule 69(4B) which reads :

"No remission shall be granted in respect of a prisoner to whom the Post-Release Supervision of Prisoners Ordinance (Cap.475) applies unless the Commissioner has been informed pursuant to section 7(3) of that Ordinance that no supervision order under that Ordinance is to be made in respect of that prisoner."

In other words, the Prison Rules still enable remissions to be awarded without a supervision order.

(2) Post-Release Supervision of Prisoners Ordinance, Cap.475 ("the Ordinance")

10. In so far as is relevant to this case, this Ordinance applies to every prisoner aged over 21 years at the time of sentence, or who had since attained the age of 25 years, and who is serving a sentence of a kind specified in the Regulations. It does not apply to a prisoner sentenced to an indeterminate sentence.

11. A specified sentence is any sentence of six years' imprisonment or more; or a sentence between two to six years' imprisonment in respect of a scheduled offence (that is, an offence in Schedule 1 of the Regulations). I will not recite the scheduled offences, for there are many of them. It suffices, for present purposes, to describe them broadly as offences of violence, serious sexual offences, triad related offences, robbery, aggravated burglary, blackmail, and offences with explosives or to do with explosives. They are, in other words, offences from which the public are in particular need of protection, and offences which would appear in many cases to be of a kind in respect of which the offender might be at risk of recidivism.

12. There is established by the Ordinance a Post-Release Supervision Board whose functions (see section 5) are -

"(1) ...

(a) to consider whether any prisoner to whom this Ordinance applies should be granted early release under supervision, and if so, to order his release in accordance with this Ordinance; and

(b) to consider applications for the variation, suspension or discharge of supervision orders in accordance with this Ordinance.

(2) In the discharge of its functions under this Ordinance the Board shall have regard to-

(a) the desirability of securing prisoners' rehabilitation and their re-integration into society; and

(b) the need to protect the public from serious harm from offenders."

Section 6 provides :

" (1) Where it appears to the Board that a prisoner to whom this Ordinance applies should be granted early release on the ground of his industry and good conduct, the Board may, if it considers that the prisoner should be subject to a period of supervision following such release, order the prisoner's early release subject to supervision under this Ordinance.

(2) An order under this section may provide for the release under supervision of a prisoner at any time after he has served not less than two thirds of the total of the actual term of his sentence and any period spent in custody taken into account under section 67A of the Criminal Procedure Ordinance (Cap.221), plus the whole of any period of forfeiture of remission ordered against him under rule 63(1)(c) of the Prison Rules (Cap.234 sub.leg.).

(3) The Commissioner shall refer to the Board for its consideration under this section the case of any prisoner to whom this Ordinance applies, together with a report and his recommendation concerning the prisoner.

..."

Section 7 stipulates that :

"(1) A supervision order shall specify-

(a) the portion of the total period referred to in section 6(2) applicable in the case of the prisoner;

(b) the conditions as to supervision which the Board considers to be necessary or desirable in the case of the prisoner having regard to the considerations specified in section 5(2)(a) and (b);

(c) the period for which the order shall remain in force, being a period ending not later than the date on which the prisoner's sentence would expire without any form of early release or remission.

(2) A supervision order shall be drawn up and signed by the Chairman and served on the Commissioner.

(3) Where the Board decides to make no supervision order it shall inform the Commissioner accordingly.

(4) A supervision order shall be subject to the prisoner's industry and good conduct prior to his release, and may be reviewed by the Board at any time before the prisoner's release under this Ordinance."

Section 9 states that :

" A prisoner who is released from imprisonment subject to a supervision order shall, until the expiration of the order in accordance with this Ordinance -

(a) be subject to supervision by a supervising officer; and

(b) comply with the order."

Section 13 empowers the Board to suspend a supervision order :

"(1) Where the Board is satisfied as regards a person who is subject to a supervision order that -

(a) the person has without lawful authority or reasonable excuse failed to comply with any term or condition of the order; or

(b) because of his conduct or a change in his circumstances since his release -

(i) the person is likely to commit an arrestable offence; or

(ii) in the case of a person who has been recalled to prison under section 16 or 17, the person was at the time of his recall a person likely to commit an arrestable offence,

it may order that the supervision order be suspended for a specified period not exceeding the unexpired term of the order.

(2) Where an order is made by the Board under this section the Commissioner shall recall the person to prison and reimprison him for the period of the suspension, or for such shorter period as may be appropriate having regard to any remission granted pursuant to rule 69 of the Prison Rules (Cap.234 sub. leg.) in respect of the period of reimprisonment."

Sections 16 and 17 make provision for temporary or summary recall to prison pending a determination by the Board :

"16. Temporary recall order

(1) Where it appears to the Chairman or Deputy Chairman that there are grounds upon which an order under section 13 could be made by the Board in respect of any person, the Chairman or Deputy Chairman may order the temporary recall of that person to prison and his detention pending the making of an order by the Board under that section.

(2) Following the detention of any person under this section, the Board shall convene as soon as is practicable for the purpose of considering the making of an order under section 13.

(3) Nothing in this section shall authorize the detention of any person beyond the expiration of 14 days beginning on the date of his initial detention under this section."

"17. Summary recall by Commissioner

The Commissioner may -

(a) if he believes that there are grounds upon which an order under section 13 could be made in respect of any person; and

(b) where he considers it to be in the public interest that the person be detained in custody without delay,

recall that person to prison and detain him in his custody for a period not exceeding 72 hours pending a decision as to the issue of a temporary recall order under section 16."

13. The transitional provisions are constituted by section 24 of the Ordinance :

" (1) Subject to subsection (2), this Ordinance applies to persons sentenced before the date on which it comes into operation ('the commencement date') as it applies to persons sentenced on or after that date.

(2) For the purposes of section 7(1)(c), and subject to that provision, the period to be specified in a supervision order in the case of a person sentenced before the commencement date shall not exceed whichever of the following is the greater, that is to say -

(a) a period equal to half the period beginning with the commencement date and ending with the date of the person's release as calculated in accordance with section 6(2) and taking into account the portion of the total period referred to in that subsection that the Board proposes to specify in the case of the person; or

(b) 6 months."

It seems to be common ground that the effect of this transitional provision is that remission earned by a prisoner prior to the commencement date is not affected by the new Ordinance. In other words, as was stated in the Legislative Council, on resumption of the debate on the second reading of the Bill : "... only periods of prison service outstanding after the enactment of the Bill will be considered for the purpose of calculating possible periods of supervision for serving prisoners." (see The Hong Kong Hansard (1994/1995), Vol.6, page 4112.

(3) Article 15, ICCPR

14. This article is at the centre of the present application :

"1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations."

(I have emphasised the provision which has triggered this application for judicial review.)

(4) The Bill of Rights Ordinance

15. Article 12 (incorporated by section 8) of the Bill of Rights Ordinance is in terms which exactly mirror art.15 of the ICCPR :

"No retrospective criminal offences or penalties

(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under Hong Kong or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

(2) Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations."

(5) The Basic Law

16. Article 39 constitutionally entrenches the provisions of the ICCPR :

" The provisions of the International Covenant on Civil and Political Right, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article."

Rationale

17. In a paper to the Bills Committee in December 1994, the Legislative Council Secretariat told members of that Committee that the fundamental objective of the scheme was to help discharge prisoners to re-integrate into society and to discourage them from re-offending. There were then two statutory aftercare schemes for offenders, but both operated on a voluntary basis. The rationale was explained thus :

"As most of the targeted prisoners ... would be long term prisoners who had been separated from society for a long period of time, they would likely encounter adjustment difficulties upon discharge. Therefore, counselling and advice would be very necessary to discourage them from re-offending and, also, to help them to lead a law abiding life after discharge."

It was added that since most of the prisoners were hard core criminals and recidivists and therefore still represented a potential threat to public safety, "the proposed [scheme] would provide reasonable protection for the general public". It was said that the scheme would not deprive prisoners of their opportunity for early release through remission, but would help them to re-integrate into society.

18. In other evidence before me, rehabilitative aspects of the scheme are described. Prisoners are given pre-release courses; plans are made to secure for them suitable employment; and arrangements are made for accommodation upon release, and there is limited financial assistance arranged.

The applicant's argument

19. It is not suggested by Ms Ng that the scheme as such is not a good scheme or a fair scheme, or is in itself in any way an unlawful scheme, but rather that, in its application to those who committed offences prior to its enactment, the scheme is unlawful.

20. Ms Ng does not put her case on the basis of legitimate expectation accrued from past practice. Her case is that the Ordinance imposes upon those who were sentenced before its enactment a heavier penalty, and that it does so retrospectively. That, she argues, contravenes art.15 of the ICCPR, which Covenant is protected by, or enshrined in, the Basic Law, art.39, and mirrored in art.12 of the Bill of Rights Ordinance.

21. The argument runs this way : that the effect of rule 69 is that, provided a prisoner's industry and good conduct were established, the prisoner was entitled to the remission of one-third of the term of imprisonment which had been imposed by a court. The heavier penalty under the new Ordinance is constituted, she says, by a number of factors : first, that the prisoner is now subject to constraints which are effected by the imposition of conditions : for example, the requirement to meet a supervisor as and when required; the requirement to inform him of an intention to leave Hong Kong; the requirements to live where the supervisor directs, to give information about changes of employment, and so on. None of these restrictions was there for a prisoner released under rule 69. But the matter goes beyond that, and section 13 of the Ordinance enables the Board to suspend the operation of an order, in consequence of which the prisoner is then recalled to prison to serve such further time as results from the period of suspension. This is a material detriment to which a prisoner was not subject under the former regime. She points to the fact that the Brief to the Legislative Council dated December 1993 said that one of the objectives of the scheme was "to protect the public from discharged prisoners considered still to represent a potential threat to public safety;" and she adds that the evidence is that quite a number of the prisoners have in fact been recalled to prison since the introduction of the scheme; and she points also to the provisions of section 13(1)(b) of the Ordinance which enables recall where the Board is satisfied that the person is likely to commit an arrestable offence. Ms Ng asserts that the courts have increasingly recognized the importance for defendants that they should know what, in real terms, a sentence will amount to; and that it is the reality and substance of a sentence in its implementation to which the court should have regard, rather than some artificial concentration on the question whether, say, a maximum available or permissible term for an offence has been increased since sentence has been pronounced.

22. The contention is that what has happened in this case, as in the case of all those who started sentences before the introduction of the new statutory scheme, is that there has in effect been an aggravation of sentence. Ms Ng invites my attention to the decision of the European Court of Human Rights in Welch v. United Kingdom (1995) 20 EHRR 247 in which that Court, in canvassing the concept of "penalty" in art.7(1) of the European Convention (an article in terms identical to art.15 of the ICCPR) said that "the court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a penalty within the meaning of this provision." What should be assessed are the realities, and in that particular case (which concerned confiscation orders permitted and imposed pursuant to the Drug Trafficking Act 1986), there was presented to a defendant a "more far reaching detriment as a result of the order than that to which he was exposed at the time of the commission of the offences for which he was convicted". She says that the effect of the new legislation is to introduce what is tantamount to an aggravation of sentence; that there is in-built to the scheme not merely rehabilitation, but also a punitive element.

Analysis

23. Mr Wong, for the respondents, argues that the scheme has no retrospective impact in that, by reason of section 24(2) of the Ordinance, remission already earned is unaffected. I do not think that this answers the gravamen of the applicant's complaint, for it remains the fact that those sentenced prior to the enactment of the Ordinance were not subject, in relation to any part of their sentence, to a statutory supervision scheme, or to the powers of recall provided by the Ordinance. So, the art.15 question raised by the applicant is, in my opinion, a live question despite the provisions of section 24.

24. In my judgment, however, the scheme to which effect is given by the Ordinance does not constitute a penalty contemplated by the prohibition in art.15 of the ICCPR. The penalty to which art.15 refers is, in true context, the penalty available for, and directed at, the offence. It is directed, as the terms of art.15(2) suggest, at the maximum punishment available for the offence itself, and is to be distinguished from such measures as may be available to encourage those subject to that punishment to utilize their incarceration to best effect, and thereafter to rehabilitate; and is further to be distinguished from preventive purposes which look to the possibility of future offences. The question to be asked, in my judgment, in any particular case, is whether the measure, though it constitutes a detriment to the prisoner's freedom, of whatever kind, is a sanction imposed for the offence committed, or is, on the other hand, a rehabilitative measure, or a preventive measure imposed to pre-empt possible future offences. If it is truly a rehabilitative measure, then it is not properly called a penalty. If it is a preventive measure imposed to pre-empt an anticipated offence then, though it may constitute a detriment, it is not a penalty imposed for the offence for which the prisoner was sentenced.

25. Looked at in this light, the case of Welch, upon which Ms Ng relies, assists her argument to only a limited degree, and the thread of such comments as have been made by the Human Rights Committee about the intent of art.15, and by the European Commission of Human Rights in relation to art.7 of the European Convention on Human Rights, are all one way - they distinguish between the punishment available for the offence itself from the manner in which the punishment is executed.

26. But, first, Welch v. United Kingdom. In August 1998, the applicant was convicted of drug offences committed in 1986 and, in addition to the sentence of imprisonment, the trial judge made a confiscation order under an Act that had come into operation in January 1987, that is, after the commission of the offence. This, the applicant said, was a retrospective criminal penalty, contrary to art.7 of the Convention. The Act enables a confiscation order to be made, directed at proceeds from drug trafficking, but it was a condition precedent to the making of such an order that the person against whom the order was to be made was appearing for sentence in respect of one or more drug trafficking offences. The Government of the United Kingdom submitted before the European Court of Human Rights that such an order did not constitute an art.7 penalty - it was a preventive measure designed to prevent a defendant from benefiting from the proceeds of trafficking and to prevent use of the proceeds for drug trafficking in the future. It was not a punishment or sanction for any specific offence. But the court said that though there was a preventive purpose to, or element in, the legislation "it cannot be excluded that legislation which confers such broad powers of confiscation on the courts also pursues the aim of punishing the offender". Whilst I take on board Ms Ng's emphasis on that Court's pointer to the need to go behind appearances, and to assess whether a measure is in substance a penalty, and whilst I accept that a preventive measure can bear a punitive element, there can be no question, in my opinion, but that the exercise of powers of confiscation under the Drug Trafficking Offences Act 1987 had a strong punitive content which in turn had a strong nexus to the commission of drug trafficking offences, and commission of one such an offence had first to be proved.

27. The power to make a supervision order, and the power of recall under the Ordinance have altogether a different aura. The exercise of those powers are not, in my judgment, akin to a sentencing exercise in the way that the making of a confiscation order upon conviction is part of, or is an adjunct to, the sentence imposed.

28. And I think, too, that the premise from which the applicant's argument embarks, namely, that an entitlement has been removed, is an erroneous premise. There was previously (and still is) no right to one-third remission or indeed to any remission. The question of remission was always a matter of discretion. Ms Ng submits that the effect of rule 69 is that "provided industry and good conduct are established, a prisoner is entitled to the remission stated". I do not think that that is quite accurate. It would be more accurate to say that, in practice, prisoners who have been industrious and of good behaviour have in fact earned remission of one-third or up to one-third. However, the fact is that rule 69 is set in discretionary terms, and rule 69 confers on a prisoner no right to remission, whether it be one-third or less. As in the case of the Prison Rules in England "remission of sentence is not a matter of right but of indulgence" (see O'Reilly v. Mackman [1983] 2 AC 237, 275.) And it is relevant to note that in imposing sentence, the courts do not have regard to the question of remission, for whilst it is most frequently granted, it is not necessarily granted (see R. v. Too Hung Fong [1991] 1 HKLR 365). In so far as the art.15 argument is founded on a suggested previous entitlement, that foundation is, in my opinion, not well based. It seems to me that under the former statutory regime (which still survives where supervision orders are not made), the Commissioner was not bound, come what may, to release a prisoner at the end of the service of two-thirds of his term of imprisonment, even if conduct had been good. So, for example, if the Commissioner had good reason to believe that a previously industrious person who had been of good behaviour was most likely to commit a serious offence shortly after his release, it would not, I think, have been an unreasonable exercise of his discretion not to discharge him forthwith. A decision not to discharge him, or to discharge him only if he agreed to live at a certain place, for example, would, I believe, have been within his lawful powers, and would have been a decision directed at the execution of the sentence and not as punishment for the original offence; whereas the Welch case concerned itself with measures which in substance were detriments imposed directly as the quid pro quo for committing drug offences. They were, in truth, penalties imposed for offences.

Communications of the Human Rights Committee

29. By reason of the Optional Protocol to the ICCPR which came into force in 1976, the Human Rights Committee was empowered "to receive and consider ... communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant." (see preamble to the Optional Protocol). Only those individuals subject to the jurisdiction of the State party to the Covenant that became a party to the Optional Protocol were entitled to bring a claim. Neither the United Kingdom, nor the People's Republic of China, are parties to the Optional Protocol, so that individuals in Hong Kong could not, and cannot now, bring claims under its provisions. But for present purposes, that is beside the point. The point is that communications of the Human Rights Committee upon individual articles of the Covenant are determinative in many instances of such complaints, and must perforce carry weight in any examination by other bodies of the meaning of a particular article of the Covenant.

30. It is significant that the Committee itself regards the terms of the Covenant to bear autonomous meaning in the sense that one is not necessarily assisted by reference to domestic legislation, or case law :

"The Committee further notes that its interpretation and application of the ICCPR has to be based on the principle that the terms and concepts of the Covenant are independent of any particular national system of law and of all dictionary definitions. Although the terms of the Covenant are derived from long traditions within many nations, the Committee must now regard them as having an autonomous meaning. The parties have made extensive submissions, in particular as regards the meaning of the word 'Penalty' and as regards Canadian law and practice. The Committee appreciates their relevance for the light they shed on the nature of the issue in dispute. On the other hand, the meaning of the word 'Penalty' in Canadian law is not, as such, decisive. Whether the word 'Penalty' in Article 15(1) should be interpreted narrowly or widely, and whether it applies to different kinds of penalties, 'Criminal' and 'Administrative', under the Covenant, must depend on other factors. Apart from the text of Article 15(1) regard must be had, inter alia, to its object and purpose."

(Doc. A/37/40 p.150, pr.10.2 cited in "The Human Rights Committee - Its Role in the Development of the International Covenant on Civil and Political Rights", Dominic McGoldrick, page 159, who states that he has added the emphasis.)

31. Against this background, the Committee's analysis in 1981 of the word "penalty" or the words "heavier penalty" in art.15(1) in the context of the introduction of a mandatory supervision scheme for released convicted persons is, in my judgment, significant. In A.R.S. v. Canada, Communication No.91 of 1981, the claimant, or author (as claimants are called) contended that there had been a breach of art.15(1) of the Covenant. He had been informed in writing that he had earned remission equal to one-third of his sentence, but thereafter there was introduced by the Parole Act mandatory supervision for convicted prisoners who were released before expiry of their term of imprisonment. His release was contingent upon his signing a supervision certificate, a requirement which did not exist when he committed the offences for which he had been sentenced. Accordingly, he said, the mandatory supervision was tantamount to a penalty heavier than that applicable when the offences were committed. The Committee, however, noted :

"... that mandatory supervision cannot be considered as equivalent to a penalty, but is rather a measure of social assistance intended to provide for the rehabilitation of the convicted person, in his own interest. The fact that, even in the event of remission of the sentence being earned, the person concerned remains subject to supervision after his release and does not regain his unconditional freedom, cannot therefore be characterized as the imposition or re-imposition of a penalty incompatible with the guarantees laid down in article 15(1) of the Covenant."

These comments were made despite the provision in the Parole Act, as amended, that enabled the suspension of parole not merely to prevent a breach of condition of parole, but where it was considered necessary to suspend parole "for ... the protection of society" (see sections 15 and 16 of the Parole Act).

32. I note that, in 1986, a judge in Canada took the same view. In Re Evans (1986) 30 CCC 3d 1, there was under scrutiny the retrospective impact, on those already serving sentences, of an amendment to the Parole Act 1970, by which a Parole Board was entitled to make a detaining order against an inmate otherwise due for release under mandatory supervision, where the Parole Board was satisfied that the inmate was likely to commit certain grave offences. The judge of the High Court of Ontario was invited to consider the terms of art.15 of the Covenant - that as an aid to interpretation of the relevant Canadian statutory provision. Whilst Smith J thought it true that prevention of automatic release could be said to amount to a penalty, nonetheless, in his view, it was not the kind of penalty to which art.15 of the Covenant was directed.

The European Commission

33. This approach to the ambit of art.15 and its equivalent, art.7 of the European Convention, is seen also in the decision of the European Commission of Human Rights in Hogben v. The United Kingdom No.11653/85, 46 DR 231 (1986). The Home Secretary in England had, in 1983 (well after the applicant had been sentenced), adopted a new parole policy as a result of which the applicant's expectation of parole was set back. The applicant contended that the effect of the new policy was to introduce a retrospective punishment by providing that a minimum period of custody be served, whereas no such minimum had been recommended when the applicant was sentenced and that, in the circumstances, the policy constituted a breach of art.7 of the Convention, as imposing upon him a penalty harsher than that originally imposed. The Commission remarked that the penalty for the offence had not changed, and went on to comment that :

"... it is true that as a result of the change in parole policy the applicant will not become eligible for release on parole until he had served 20 years' imprisonment. Although this may give rise to the result that his imprisonment is effectively harsher than if he had been eligible for release on parole at an earlier stage, such matters relate to the execution of the sentence as opposed to the 'penalty' which remains that of life imprisonment. Accordingly, it cannot be said that the 'penalty' imposed is a heavier one than that imposed by the trial judge."

34. There are other decisions of the Commission which make the same point : the difference between, on the one hand, punishment for the offence and, on the other, the enforcement of punishment already imposed - see the cases reported at pages 29 et. seq. of "Digest of Strasbourg Case Law Relating to the European Convention on Human Rights", Vol.3. Whereas a couple of the extracts there reported evidence the Commission's views that "Article 7 does not exclude that a penalty already imposed is carried out in a modified form if no heavier conditions are applied than would have been permissible at the time of the commission of the crime" (see page 32), there are cases in which the Commission says that art.7 "does not exclude the application of a law ... which only imposed stricter conditions for release from imprisonment in regard to persons convicted and sentenced before the enactment of that laws" (Dec. Adm. Com. Ap 1701/62); and that art.7 "relates to the conviction of an accused person, whereas the procedure complained of ... related exclusively to the possible release of X on certain conditions and thus to the enforcement of a punishment already imposed" (Dec. Adm. Com. Ap 1748/62) (op.cit. page 30). And, at page 33, there is reported the view of the Commission that :

"It is doubtful whether the committal to an institution for recidivists can be considered as a penalty within the meaning of article 7 ... as it is by definition a preventive measure imposed in view of possible future offences and not a sanction for criminal acts in the past."

The Scheme

35. The scheme to which the Ordinance gives effect is essentially rehabilitative. I believe that to be so even though there are controls and limitations on the lifestyle and habits of the released prisoner, and even though there is a right to recall. In my judgment, those limitations and controls, and the power of recall for breach of a supervision order, are adjuncts to rehabilitation. They are there as tools by which to render the scheme, rehabilitative in intent, effective. It is to be remembered that those who fall under the scheme's umbrella are those who have been imprisoned for more than six years, or who have committed specified offences and have been sentenced to terms of imprisonment for between two to six years. The nature of the specified offences are in many instances of a kind which, for a variety of reasons, carry a particular recidivist risk - triad offences or offences which tend to be triad related where, in the absence of fruitful support, the danger of falling back into bad company upon release may be real; or sexual offences where a particular offender might have a disposition to an offence of that kind. The scheme is and, as the various papers make clear, is intended to be, rehabilitation oriented, to assist discharged prisoners to re-integrate into society and to discourage them from re-offending. What is intended is that assistance be given to the prisoners to secure employment or to enroll in training courses and to find accommodation. Upon discharge, apart from periodic acts of supervision, welfare requests are received and, where appropriate, referrals are made; for example, referral to psychological services. I note that in the development of the legislation, the authorities agreed with pressure from Legislative Council members that a social worker instead of a policeman be included in the aftercare team.

36. The operation of the scheme is described thus by a superintendent of the Correctional Services Department in an affirmation before the court :

"5. Six months before his release, the prisoner will be assigned to a team of supervising officers comprising two Aftercare staff from the CSD and a social worker from the Social Welfare Department (the 'SWD'). The inclusion of a social worker at the rank of an Assistant Social Work Officer (ASWO) in each supervising team reinforces the social work element in the supervision of discharged prisoners.

6. The supervising officers will, working in conjunction with the institutional Prisoners' Welfare Officer of the CSD, maintain regular contacts with the prisoner to assist him/her to prepare for his/her return to the community through the discharge plan. Before discharge, the prisoner will attend the Pre-release Reintegration Orientation Course organized by the Prisoners' Welfare Officer when information on community resources are provided with an aim to help him/her reintegrate smoothly into society upon discharge.

7. On release from prison till the expiration of his/her supervision period, the supervising officers will meet the discharged prisoner who is subject to a supervision order (the 'supervisee') at his/her home, work place or at places mutually agreed by and convenient to both the supervising officer and the supervisee. When conducting such field visits, the supervising officers will strive to preserve the privacy of the supervisee, e.g. they will be cautious to avoid causing embarrassment to the supervisee or divulging the criminal background or former prisoner's identity of the supervisee. These visits/interviews will be conducted on a regular basis throughout the supervision period. They will help the supervisee adjust to society after discharge and ensure that he/she does comply with the requirements of his/her supervision order. The supervisee may also get in touch with the supervising officers through radio pager and telephone contact so that timely assistance and advice can be offered."

37. Schemes of this kind are evidently tailored for the individual and it is not to be forgotten that the imposition of a supervision order is not automatic. Rule 69(4B) of the Prison Rules, as well as the discretionary nature of the Board's powers under the new Ordinance, makes that clear. So a person who has not been made the subject of a supervision order will receive such remission as is considered to be his due, free from supervision.

Penalties, and exercises akin to sentencing

38. It is in these circumstances difficult, I think, to describe the supervisory conditions themselves as constituting a penalty, let alone one to which art.15 applies; although it could be said that the act of recall when there has been a breach of a supervision order, though essentially part of a rehabilitative scheme, carries an element of punishment. Yet such penal element as might be said to exist in the act of recall for breach of a supervision order is a penal element which is part and parcel of the rehabilitation exercise and not a penalty for the original offence. As for the power to recall a person to prison in anticipation of an offence, I accept that that is preventive in nature rather than rehabilitative, though the prevention of an offence by someone under supervision might be said to be an aid to his rehabilitation. But, still, even ignoring that possible rehabilitative element, and even acknowledging the obvious restriction, or detriment, or penalty, that flows from recall, the act of recall is preventive and is not a sanction for the original offence. It is not an act of sentencing, or akin to sentencing, for the original offence, and it is this which distinguishes the powers of the Board under this Ordinance, from the role of the Home Secretary under scrutiny in R. v. Secretary of State for Home Department, ex parte Pierson [1998] AC 539, a decision of the House of Lords upon which Ms Ng placed much reliance.

39. The applicant in that case was, in 1985, convicted of a double murder and sentenced to two mandatory life sentences. There was a policy then in operation by which the Home Secretary fixed, in relation to such an applicant, a fixed period which that person had to serve to meet the requirements of retribution and deterrence (referred to as "the penal element"), to be distinguished from any remaining period which he might be required to serve before release, which depended upon an assessment of the danger, if any, to the public if released ("the risk element"). In 1988, the Home Secretary, in the case of the applicant, fixed the penal element or portion at 20 years, declining thereby to adopt the 15 year period recommended by the trial judge and the Lord Chief Justice. To give effect to the judgment of the House of Lords in R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, in which the absence of a fair procedure by which prisoners could make relevant representations to the Home Secretary resulted in successful judicial review, the Home Secretary announced a new policy which included the right of a prisoner to make representations to the Home Secretary if, exceptionally, the Home Secretary proposed to increase the penal element earlier communicated. In Pierson's case, the Home Secretary wrote to the applicant informing him of the judicial recommendations as to the penal element which had been made in his case, and of the substance of the decision by the Home Secretary, saying that the Home Secretary had taken into account the facts that the offence was premeditated, and was a double murder. The applicant's solicitors persuaded the Home Secretary that neither premise was tenable - in other words, that the two murders were part of a single incident, and that it would be wrong to proceed on the basis that they were premeditated. Nonetheless, the Home Secretary, in May 1994, maintained his view that 20 years was appropriate to meet the requirements of retribution and deterrence. The basis upon which the application for judicial review came to be considered was stated thus by Lord Goff, at page 566 :

"The true position is that, since the period of 20 years was originally fixed on the basis of matters, in particular, premeditation, which constituted aggravating characteristics which were taken into account in error, the maintenance of the same period in the later decision constituted in substance an increase in the period."

The appeal was allowed, in the applicant's favour, the House of Lords holding that the decision to maintain the 20 year period had in effect amounted to an increase in the period and that, according to the pre-1993 policy, no increase in the period was permissible save in exceptional circumstances, and it was not suggested that such exceptional circumstances existed.

40. Ms Ng relies on this case as showing that the courts will regard an administrative decision of this kind to be in the nature of a sentencing exercise or, put another way, that "penalty" is not to be equated solely with the sentence imposed by the court; that once a penal element is decided, it ought not and cannot lawfully be increased; and that where an appropriate period of punishment has been communicated to a prisoner, it ought not retrospectively to be increased. She stresses in particular the following passage from the speech of Lord Steyn, at page 585 :

"Counsel for the Home Secretary argued that the fixing of the tariff cannot be a sentencing exercise because the judge pronounces the only sentence, i.e. one of life imprisonment. This is far too formalistic. In public law the emphasis should be on substance rather than form. This case should also not be decided on a semantic quibble about whether the Home Secretary's function is strictly 'a sentencing exercise'. The undeniable fact is that in fixing a tariff in an individual case the Home Secretary is making a decision about the punishment of the convicted man."

41. There is, in my judgment, much to distinguish the Pierson case and the principles under consideration in that case, from the facts of the case now before this court and the issues which now arise. Pierson involved the actual fixing of a term of imprisonment in relation to a particular prisoner, and furthermore, the fixing of the punitive period. It is not difficult to see why such an exercise may be described as akin to a sentencing exercise. The effective increase in the term of imprisonment was directed, indeed exclusively directed, at that punitive element or period. It is noticeable that the Court of Appeal made a point of saying that the risk element was not part of the judicial review (per Sir Thomas Bingham MR, pages 544H - 545A).

42. The contrast with the application for judicial review with which I am concerned is marked. Every prisoner still remains eligible for release after serving two-thirds of his term. The scheme of itself does not result in an increase in the term served in custody, and supervision conditions, if imposed at all, are not directed at, or motivated by any consideration of, an appropriate punitive element. On the contrary, they are motivated by considerations of rehabilitation. And the power of recall under section 13(1)(b) of the Ordinance is not a sanction for past criminal acts, or for the offences for which the prisoner was convicted.

43. It is noteworthy also that the decision in Pierson was quashed because it was a decision taken under a policy the very terms of which precluded increase of a penal element fixed before the policy :

"In its terms, therefore, the new policy did not apply to a case where the penal element had been fixed by a previous Secretary of State under the policy then applicable, in which it was stated that the penal element once fixed would not (apart from one specified circumstance) be subject to increase." (per Lord Goff, page 569c)

The penal element was, by the terms of the policy itself, precluded from increase, and the Home Secretary had breached that policy. That was the basis of the decision of the House of Lords, a judgment which addressed the fixing of a term of imprisonment after consideration of the circumstances of an individual case. The decision of the Home Secretary was, as counsel for the applicant put it (see page 561E), one which determined the period during which the discretion to release would not be exercised. Under the Ordinance, the discretion remains at large at all times after two-thirds of the sentence has been served, and its exercise against a prisoner, if so exercised, for either of the reasons permitted by section 13 of the Ordinance, is not a fresh or added sentence or penalty for the offence itself.

Conclusion

44. Art.15(1) in its injunction against the imposition of a heavier penalty is directed at the penalty available for the offence itself, and whilst substance and reality, rather than artificial technicality, must govern, distinctions must be drawn between an exercise which is in the nature of fixing a punitive element for the offence itself and, on the other hand, measures which are essentially rehabilitative or preventive. The making of a supervision order is essentially a rehabilitative measure and is not properly described as a penalty. The power to recall a person to prison for breach of a supervision order is a necessary adjunct to the rehabilitative scheme of the Ordinance; and the power to recall in anticipation of a likely offence is preventive. But in so far as the power, exercised for either reason, might be said to embrace a penal element, the act of recall is not an act of, or akin to, sentencing for the original offence, or an enhancement of the penalty applicable for the offence. Whilst it may result in incarceration for longer than was the practice prior to enactment of the Ordinance, remission of sentence was always, and remains, a matter of discretion, so that the Ordinance does not remove a prior entitlement.

45. In my judgment, therefore, the powers conferred on the Board by the Ordinance to impose supervision orders, and to recall a prisoner to prison under the circumstances prescribed by that Ordinance, do not constitute a heavier penalty within the meaning of art.15 of the ICCPR (or of art.12(1) of the Bill of Rights Ordinance), and the provisions of the Ordinance are accordingly not in breach of art.39 of the Basic Law. The application for a declaration that it was unlawful for the Board to impose the supervision order is accordingly dismissed. This particular form of relief was added by amendment on 17 March 2000. It appears that no amended Notice of Application has been filed and it is not certain whether it was intended to delete the original items of relief claimed, namely, an order to quash the supervision order; an injunction to prohibit the 2nd respondent from executing it; and a declaration that the applicant was entitled to be released after 25 January 1999 free from any supervision order. Deletion was probably intended, but for the avoidance of doubt, those applications, if and in so far as they survive, are also dismissed. It follows that the application for judicial review is dismissed.

46. As for costs, I have not heard counsel. The case is conceded to be one that raises an issue of some importance for prisoners generally, and that required to be resolved. It may be, in the circumstances, that the question of costs can readily be agreed, but if not, I shall hear counsel on that issue. There will be an order for taxation of the applicant's costs in accordance with the Legal Aid Regulations.