NANCY ANN KISSEL v. THE LONG-TERM PRISON SENTENCES REVIEW BOARD

CACV 230/2018

[2020] HKCA 490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 230 OF 2018

(ON APPEAL FROM HCAL 137/2016)

________________

_________________

J U D G M E N T

_________________

Hon Poon CJHC (giving the judgment of the Court):

A. Principal issue

1.  Under the Long-term Prison Sentences Review Ordinance, Cap 524 (“the Ordinance”), the Long-term Prison Sentences Review Board (“the Board”) carries out reviews of, among other sentences stipulated, indeterminate and long-term prison sentences.  In exercising its functions or performing its duties in relation to a prisoner, section 8 of the Ordinance mandates the Board to have primary regard to four principles:

“(a) in any case where the prisoner has not been completely rehabilitated, the rehabilitative effect of releasing the prisoner from detention before the unremitted part of the prisoner’s sentence is served;

(b) the benefits to the prisoner and to the community arising from the prisoner being supervised after release with a view to securing, or increasing the likelihood of securing, the prisoner’s rehabilitation (in any case where the prisoner has not been completely rehabilitated) and successful reintegration into the community;

(c) whether the part of the prisoner’s sentence already served is sufficient, in all the circumstances (in particular given the nature of the offence for which the prisoner is being detained), to warrant consideration being given to having the prisoner released from detention early;

(d) the need to protect members of the community from reasonably foreseeable harm that could be inflicted by the prisoner as a result of having been released from detention early.”

2.  After reviewing the indeterminate sentence of a prisoner, the Board may make a recommendation to the Chief Executive that his sentence be converted to a determinate one to facilitate his early release from detention: section 15(1)(a) of the Ordinance.

3.  The principal issue raised in this appeal is whether on a proper construction of section 8(c) of the Ordinance, the Board, in its adverse decision, has to indicate to a prisoner who is serving a mandatory life sentence, which is an indeterminate sentence, the period which the Board considers to be the “tariff period” reflecting the punitive part of his sentence or the “triggering period” sufficient to warrant consideration for his early release as a matter of fairness and natural justice when the prisoner has made out a reasonably arguable case to warrant consideration be given to having him released from detention early.[1]

B.    Proceedings below

B1.    Facts

4.  The applicant in this appeal was convicted of murder of her husband and was sentenced to mandatory life sentence on 1 September 2005.  Her conviction was eventually quashed by the Court of Final Appeal on 11 February 2010.  On retrial, she was convicted of murder and was sentenced to mandatory life sentence on 25 March 2011.  Her subsequent appeals were all dismissed by the Court of Appeal and the Court of Final Appeal respectively.

5.  The first and second reviews of the applicant’s sentence pursuant to the Ordinance took place on 10 October 2011 and 18 October 2013.  The third review involved an oral hearing on 19 January 2016 and the Board’s meeting on 5 February 2016.  On each review, the Board concluded that the period the applicant had served was insufficient in all the circumstances and decided not to recommend to the Chief Executive to convert her sentence to a determinate one.

B2.    Grounds of challenge

6.  It was the decision made by the Board on the third review dated 28 April 2016 which prompted the applicant to mount the judicial review proceedings before Au J (as he then was) and Andrew Chan J below. The applicant raised two main challenges.

7.  First, she complained that when the Board refused to make a recommendation, it had in substance exercised a judicial function to decide that the punitive and deterrent elements of her sentence were insufficient in all the circumstances to merit a consideration for early release, in contravention of article 80 of the Basic Law.  Alternatively, the impugned decision was in breach of her right to have the part of her sentence that represented the punitive and deterrent elements of her punishment determined by an independent and impartial tribunal, in contravention of article 10 of the Hong Kong Bill of Rights.

8.  Second, if the Board was not exercising a judicial function, the applicant complained that it had acted unreasonably in that, as a matter of natural justice, it had, among other things, wrongly refused to identify the length of the period to be served before any application for a determinate sentence would be given serious consideration for release on merits; and wrongly refused to identify the length of the period that would have to be served before the requirements of retribution and deterrence would have been served in respect of the application’s particular offence.

B3.    The Judges’ reasoning

9.  By their joint judgment dated 17 May 2018 (“the Judgment”), the Judges rejected both challenges.

10.  As to the first challenge, the Court of Appeal held in Tong Yu Lam v The Long-Term Prison Sentences Review Board & Another [2009] 4 HKC 133 that the Board was exercising an executive but not judicial function: per Stock JA (as he then was) at [20].  Since Tong Yu Lam is binding on the Judges, the applicant accepted that the first challenge was best reserved for higher appellate courts.  The Judges accordingly found that there was no merit in it.[2] Despite the reservation, the applicant did not pursue the first challenge before this Court.

11.  As to the second challenge, the applicant’s primary ground was that at the time of the most recent review, the Board should indicate to the applicant either (i) the definite term; or (ii) the punitive part.  Alternatively, the applicant, relying on the Judges’ earlier judgment in A v Chief Executive of HKSAR [2013] 4 HKLRD 404, at [28], argued that the Board should indicate to her the period of her sentence which would trigger the Board’s real and effective consideration of the merits of her case for early release.[3] The Judges referred to Tong Yu Lam and Lau Cheong & Another v HKSAR (2002) 5 HKCFAR 415 and held that it would be inappropriate for the Board to demarcate some lesser period of the sentence as the punitive period, as a matter of logic, it would be absurd to require as a matter of natural justice the Board to further demarcate the punitive period into any other lesser period such as the triggering period.[4]

12.  The Judges went on to reject the applicant’s argument that Tong Yu Lam was per incuriam because the Court of Appeal had not considered the legislative history of the Ordinance.  The Judges observed that the Court of Appeal in Tong Yu Lam in fact relied on Lau Cheong where the Court of Final Appeal had gone through the legislative history of the Ordinance in reaching its judgment.[5]

13.  In relation to the alternative ground, the applicant argued that the Board should have indicated the minimum period the applicant had to serve which would trigger the Board’s real and effective consideration of the merit of her case for early release, which could be said to equate with the triggering period described in A v Chief Executive of HKSAR at [28].[6]  That was rejected by the Judges.  After going through the relevant legislative papers, the Judges pointed out that there was no legal requirement to indicate the minimum term as contended.[7]

14.  Mr Fitzgerald, who also appeared for the applicant below, further submitted that notwithstanding Tong Yu Lam, it was open to the Board to specify a “triggering period” by which, in applicable circumstances, the Board might identify broadly in advance the likely length of further custody, since the role of the Board was to consider whether the applicant had served a sufficient period of sentence which would trigger the Board to consider early release.  Again, he relied on A v Chief Executive of HKSAR at [28].[8] The Judges found that such reliance was misplaced.[9]  Having regard to the duties and functions of the Board as provided for in the Ordinance, the Judges held that the Board must approach each review by the same prisoner afresh since the circumstances might have changed significantly since the last review.  They pointed out that mandatory life sentence is one singular sentence subject to executive clemency.  Whether the sufficient period for the purpose of section 8(c) had been reached is a multi-faceted fact sensitive exercise to be determined at the time of the review by reference to all the relevant circumstances at their then status.  If the Board did not find that a sufficient period had been reached, it did not follow that it must or could form a view as to when or how long before that sufficient period could be reached as that would be dependent on the future status of those relevant matters.[10]

15.  The Judges held:[11]

“… on each occasion the Board and its members, who come to the meeting with their diverse backgrounds and expertise, are required to examine the circumstances as at that time pertaining to each prisoner by carefully balancing the nature of the offence with other circumstances, to come to a decision whether the point in time has been reached where the Board ought to consider that the sentence already served warrants consideration being given for having the prisoner released from detention earlier.”

16.  The Judges went on to hold that since the prisoners are well aware of what matters are relevant to the Board’s consideration as identified in the Ordinance relevant to the review, there is no question that they are somehow unfairly prejudiced in not being able to make informed representations without knowing the “triggering period” or the punitive part of the sentence.[12] They again disagreed with the applicant’s reading of the legislative history of section 8(c).[13]  They rejected the applicant’s submission that because the Board’s refusal to inform her of the length of the punitive term or the triggering period, she was effectively denied the right to make informed representations to the Board, noting that the applicant was legally represented in the third review and there was nothing to stop her from providing all relevant information.  They further observed that all procedural safeguards had been strictly adhered to in her case.[14]

C.     A fourth review

17.  Subsequent to the judgment below, the applicant had her sentence reviewed for the fourth time on 26 October 2018. Again, the Board refused to make a recommendation to the Chief Executive.  The applicant maintained her complaint that the Board did not give any indication of the period that it would have regarded as sufficient to reflect the gravity of her offence in all the circumstances.  Without knowing such, she cannot reasonably address the rationality of the earlier reviews.  Further, without that knowledge or some knowledge of the kind of finite period that the Board has had in mind when refusing her earlier applications, she cannot begin to make meaningful and informed representations at her next review scheduled for October 2019.

18.  The evidence relating to the fourth review is placed before this Court by the applicant’s application to adduce fresh evidence.  Ms Queenie Lau, appearing for the respondent, did not object to the application if it was only an update, which was exactly the applicant’s intention.  Indeed, the fourth review could not have formed part of the present appeal.  Nor does it take the applicant’s appeal any further.  For that limited purpose, the application to adduce the fresh evidence is allowed.

D.     Overview of the applicant’s arguments

19.  Mr Fitzgerald’s arguments advanced before us break down into two major components.

20.  His primary contention is that on a proper construction of section 8(c) of the Ordinance, the Board in performing its administrative function has to identify the tariff period reflecting the punitive part of an indeterminate sentence of the prisoner concerned or the triggering period representing a sufficient threshold period warranting consideration be given to his release from detention early.

21.  Resting on that contention as the main plank, Mr Fitzgerald argued that once the Board has conducted the exercise under section 8(c) and reached an adverse conclusion, as a matter of natural justice it has to disclose as part of its reasons what period it actually considered would be sufficient.  If the Board did not do so, then the prisoner would be unable to make informed representations at his subsequent reviews.

22.  We first examine his primary contention. 

E.      The Board’s functions under section 8(c)

23.  Whether the Board has a duty to identify the tariff period or the triggering period under section 8(c) of the Ordinance is a matter of statutory interpretation.  It is convenient to first summarize the relevant legal principles derived from Lau Cheong and Tong Yu Lam to set the framework for discussion.  

E1.    The relevant principles

24.  The judgment of the Court of Final Appeal in Lau Cheong is the definitive authority on the regime for dealing with mandatory life sentences in Hong Kong.

25.  There, constitutional challenges were mounted against the mandatory life sentence for the offence of murder.  One such challenge was that the mandatory life sentence for the offence of murder, which was introduced by way of the Crimes (Amendment) Ordinance in April 1993, was arbitrary, contrary to article 28 of the Basic Law.[15] The appellants argued that the culpability of those convicted of murder varied greatly, ranging from the mercy killing to the contract or sadistic killing.  In depriving the judge of all sentencing discretion and compulsorily requiring the imposition of life imprisonment in all murder cases, whatever the degree of culpability of the individual involved, such imprisonment was arbitrary and unconstitutional.  That argument was rejected by the Court of Final Appeal.

26.  In their joint leading judgment, Li CJ and Ribeiro PJ, after reviewing the history of the sentence for murder in Hong Kong, including the legislative deliberations leading to the enactment of the Crimes (Amendment) Ordinance, and outlining the framework of the Ordinance, relevantly said:

“108. The legislative history also makes it clear that the legislature’s intention was to mark out murder as a uniquely serious offence by attaching only to that offence the mandatory sentence….

109.  These are matters to which due weight should be given.  The Court ought also to give proper weight to the fact that it was part and parcel of the legislature’s decision that a statutory regime for the individualised review of each sentence after its mandatory imposition should be put in place.  It was on the basis of the Administration’s assurances that the legislation necessary for such a scheme would be introduced that the mandatory life imprisonment provisions were passed into law.  That scheme is now embodied in [the Ordinance].”

27.  In conclusion, their Lordships held:

“123. Taking into account the inherent and unique gravity of the offence and the sentencing objectives of a mandatory life sentence as a whole, we are unable to accept that mandatory life imprisonment represents a manifestly disproportionate sentence so as to contravene BL art.28 on the grounds of arbitrariness. The legislative judgment that the offence of murder, having regard to its gravity, calls for a sentence of mandatory life imprisonment, even allowing for the different circumstances in which it may be committed, is tenable and rational. As such it is a legislative judgment which this Court should respect.

…

125.  In accepting the legislative judgment, we give particular weight to the legislature’s insistence on a statute-based regime for review by an independent board of all life sentences, with power to recommend conversion of such sentences to fixed terms and to direct conditional releases in appropriate cases.”

28.  The imposition of a mandatory life sentence for the offence of murder by a court in exercising of its judicial function coupled with reviews by the Board under the Ordinance as an exercise of executive clemency aligns with the traditional treatment given to indeterminate sentences.  Li CJ and Ribeiro PJ explained the traditional treatment in these terms:

“149. A sentence of life imprisonment is on its face an indeterminate sentence. Traditionally, that is how it has in fact taken effect. The court sentences the offender to prison for an indefinite period, exercising its judicial power in a system which embraces the principle of the separation of powers. Thereafter, in the execution of the sentence, the constitutionality of non-judicial intervention in appropriate cases in pursuit of legitimate policy aims has been accepted. Thus, executive clemency, a system of sentence remission and a parole system to encourage the rehabilitation and re-integration into society of offenders who have been sufficiently punished, have been accepted as part of the institutional framework in which an indeterminate sentence is served. By operation of such non-judicial measures, the life prisoner may, in appropriate cases, be released either unconditionally or on licence.”

29.  Those remarks were made in the context of their Lordships’ discussion of the then legal regime for the treatment of mandatory life sentences for murder in England and Wales and the legal challenges mounted against the system, both at the domestic level and in Strasbourg.  As pointed out by their Lordships, under the English system, the Home Secretary would fix a tariff for each case of life imprisonment, both mandatory and discretionary, after consulting the trial judge and the Lord Chief Justice.  The tariff would represent the punitive element of the sentence, reflecting what was required by way of retribution and deterrence.  It would be the minimum period which the offender was to spend in prison.  At its expiry, he would be released unless it was considered that there were grounds to continue his imprisonment.  The decision as to whether to release the prisoner at the post-tariff stage was also to be made by the Home Secretary.

30.  Their Lordships went into some details of the cases in which legal challenges were mounted against the English system.  For present purposes, it is sufficient to note what they said about the then latest authority on the subject:

“158. In Stafford v United Kingdom (unrep., European Court of Human Rights, Application No 46295/99, 28 May 2002), a decision published after conclusion of the argument in the present case, the European Court of Human Rights has held, after a detailed review, that the United Kingdom’s treatment of mandatory life sentences contravened ECHR arts.5(1) and 5(4). The Court held that … (b) that the domestic jurisprudence in England and Wales showed that there was in reality no difference in principle between mandatory and discretionary life sentences; (c) that the tariff-fixing exercise was part of the sentencing process; (d) that, accordingly, post-tariff period detention raised issues of potential unlawfulness and required compliance with ECHR art.5(4), the UK being in contravention in that the decision whether to release after the tariff period was not taken by a body qualifying as judicial, but by the Home Secretary; and (e) that continued imprisonment pursuant to the Home Secretary’s decision after expiry of the tariff period where there was no risk of violent offending infringed ECHR art.5(1) which limits the deprivation of liberty, inter alia, to lawful detention after conviction by a competent court.

31.  After observing that it was not possible to say what changes in England and Wales would result from Stafford v United Kingdom, their Lordships raised several possibilities.[16] Importantly, their Lordships then reiterated their earlier observation at [151] that the English practice had not been adopted in Hong Kong:

“159. … For our purposes, it suffices to note that the system in Hong Kong is materially different. No tariff is fixed and mandatory life imprisonment continues to take effect as an indeterminate sentence along the traditional lines described above.”

The reference to “the traditional lines” was obviously the traditional treatment the Lordships described at [149].

32.       Tong Yu Lam concerns the adequacy of reasons given by the Board in deciding not to make a recommendation to the Chief Executive that the appellant’s mandatory life sentence be substituted by a determinate one, which is of course highly relevant to the issues at hand.

33.  In rejecting the appellant’s argument that the Board had to give such an indication, Stock JA (as he then was) said:

“20. It is said that in any event the Board should in all reviews of mandatory life cases provide an indication of how long the convicted person should be required to serve to meet the punitive part of the sentence. This, with respect, is not logical. It is accepted that the determination of a punitive part of a sentence – if in mandatory life cases that were to be required – is a judicial function which it would not be for the Board to perform. That being so, it would be odd for the Board to take upon itself the function of giving some broad and non-judicially determined intimation tied to the concept of a punitive period. Be that as it may, as matters presently stand, the fact is that the Board’s function is a step in the exercise of executive clemency where the punitive period is treated as the entire term of the sentence; and it is not in those circumstances appropriate for the Board to be demarcating some lesser period as the punitive period, save only to the extent that such a determination may be said to be implied where it recommends the substitution of a determinate sentence.”

34.  The appellant then applied for leave to appeal to the Court of Final Appeal.  In dismissing the application, Li CJ referred to Lau Cheong and reiterated that the mandatory life sentence was the sentence as traditionally imposed, that is, an indefinite sentence of imprisonment for life subject to regular statutory reviews by the Board and to possible release by executive decision. There was no scope for now contending that such a mandatory sentence could only be valid if a minimum term is fixed by a judge as the punitive part of the sentence.

35.  Importantly, Li CJ ruled:

“2. Nor is [the appellant’s] fallback argument that the Board should set a minimum term or give a broad indication of it viable.”

36.  To sum up, the following propositions relevant to our discussion may be derived from Lau Cheong and Tong Yu Lam.

37.  First, the regime for the treatment of mandatory life sentences in Hong Kong has all along followed the traditional lines as outlined in Lau Cheong at [149].  It is built on the cardinal principle of separation of powers.  In brief, the whole sentence is an indeterminate sentence imposed by the court.  Thereafter, it is subject to executive clemency to be exercised by the Chief Executive upon the recommendation by the Board pursuant to the Ordinance.  The Board’s function is a step in the exercise of executive clemency where the entire sentence is treated as punitive.

38.  Second, the Board as an independent body to review mandatory life sentences is an integral part of the regime.  It is essential in maintaining the constitutionality of mandatory life sentences by saving them from arbitrariness.  It enables individualized review of each such sentence by the executive after its mandatory imposition by the court.  It ensures that the regime operates along the traditional lines in compliance with the constitutional requirements.

39.  Third, the system in Hong Kong is materially different from the one adopted in England.  Most significantly, no tariff or minimum term reflecting the punitive part of an indeterminate sentence is ever fixed.

40.  Fourth, since determining the punitive part of an indeterminate sentence, or the tariff-fixing exercise, is a judicial function, the Board, as an administrative body, has no power to demarcate a lesser period as the punitive period.  Nor is it appropriate for the Board to give some broad and non-judicially determined intimation tied to the concept of a punitive period.

41.  As the law now stands, the Board does not have the power nor the duty to fix or indicate the punitive period of an indeterminate sentence or the “tariff” period under section 8(c) of the Ordinance, as contended by Mr Fitzgerald for the applicant.

E2.    The applicant’s arguments

42.  Mr Fitzgerald submitted that the Court of Final Appeal in Lau Cheong did not really analyze the function of the Board under section 8(c) of the Ordinance as it was not necessary for the determination of the issues of the case.  It had merely described its constitution and powers at [93]-[98]. Likewise, the Court of Appeal in Tong Yu Lam did not appear to have been addressed in detail the legislative history of section 8(c).  Tong Yu Lam can either be distinguished or treated as per incuriam when, Mr Fitzgerald contended, the legislative history of section 8(c) sheds a different light on the function of the Board thereunder.  This calls for a closer look of the legislative history of section 8(c).

43.  The Long-term Prison Sentences Review Bill did not contain section 8(c) in its original form.  At the Fourth Meeting of the Bills Committee dated 19 May 1997, members were concerned that the way clause 8 was drafted gave the impression that the three sub-paragraphs, equivalent to sub-sections (a), (b) and (d), were the only considerations that the Board would take into account in performing its functions and duties.  The Administration replied that the policy intent was that those sub-paragraphs were not meant to be exhaustive. The Board was entitled to have regard to other principles in relation to the exercise of its functions.[17]

44.  A member then pointed out whereas clause 8 had made references to the rehabilitative effect of an early release from detention on a prisoner, it had failed to address the issue of justice implicit in the imposing of a tariff period to be served for punishment.  The Administration advised that the policy was that on reviewing the sentence of a prisoner, the Board was not authorized to order the early release of the prisoner until the prisoner concerned had served the tariff period.[18] Members then requested the Administration to review the drafting of clause 8 to reflect the policy intent that the principles stated there were only the core considerations and not meant to be exhaustive, and to reflect in the clause the concept of serving the punitive tariff period by prisoners.  The Administration agreed to examine these points.[19]

45.  After the Fourth Meeting, in its written response to the concern raised “to review the drafting of clause 8 to reflect in the clause the concept of serving the punitive tariff period by prisoners”, the Administration proposed to add an additional principle in clause 8, which eventually became section 8(c), to require the Board to have regard to whether the prisoner has served a sufficient part of his sentence, in particular given the nature of the offence for which the prisoner is sentenced.[20] At the Sixth Meeting of the Bills Committee held on 3 June 1997, the Deputy Secretary for Security reiterated the Administration’s proposal.[21]

46.  Mr Fitzgerald argued that section 8(c) was drafted to give effect to the policy that the prisoner should first serve a tariff period before serious consideration is given to his release.  Based on such reading of the legislative history, he submitted that that policy can be given effect in the administrative context as is clear from the then practice in England involving the fixing of the tariff reflecting the punitive part of the sentence by the Home Secretary, as analyzed in R v Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531, per Lord Mustill at pp.552H-554E.  There is a parallel between the then English practice and the operation of section 8(c), Mr Fitzgerald contended.

47.  With respect, we disagree.

48.  First, what transpired during the legislative history of section 8(c) must be understood and read in its proper context.  That context was the creation of a statutory regime for treatment of mandatory life sentences along the traditional lines.  As emphasized by Li CJ and Ribeiro PJ in Lau Cheong at [149], executive clemency as part of the institutional framework in which an indeterminate sentence is served, is “to encourage the rehabilitation and re-integration into society of offenders who have been sufficiently punished” (emphasis supplied).  Before the introduction of section 8(c), the other three sub-sections focused on rehabilitation (sub-sections (a) and (b)) and risk (sub-section (d)) without expressly requiring the Board to have regard to the sufficiency of the sentence already served by the prisoner.  Section 8(c) sought to address the perceived imbalance in the Board’s consideration of a sentence review.  It was a perceived imbalance because even without section 8(c), the Board in conducting a review must take into account the sufficiency of the sentence already served by the prisoner, which is undoubtedly a highly relevant factor.  Section 8(c) was added to put the matter beyond doubt.  Viewed thus, the introduction of section 8(c) served to complement the statutory framework for the treatment of mandatory life sentences.  It did not mean to transform a system built on the traditional lines (as discussed in Lau Cheong) into a system of requiring the Board to fix the tariff period administratively.

49.  Second, as pointed out by Stock JA in Tong Yu Lam at [20], determining the punitive part of an indeterminate sentence is always a judicial function.  If the legislature intended to require the Board to fix the tariff administratively, it represented a fundamental departure from the well-settled norm.  Two questions immediately arose.  First, why did the legislature not provide for the court to fix the tariff instead, a function that the court is constitutionally tasked and best equipped to perform?  Second, why did the legislature decide to vest the Board with the power to fix the tariff administratively when it is on any view a judicial function in substance?  It would have the effect of trespassing on the court’s judicial function, contrary to the cardinal principle of separation of powers upon which the framework of treating mandatory life sentences is built.  There is no satisfactory answer to either question from Mr Fitzgerald’s submissions.

50.  Third, had it been the legislative intent to create a system for the Board to fix the tariff period administratively, given its immense importance and as a fundamental departure from the norm, section 8(c) should have provided for it expressly.

51.  Lastly, Mr Fitzgerald’s reliance on Doody and other English cases is entirely misplaced.  Nothing in the legislative history of section 8(c) suggested that the legislature intended to adopt the then English practice of fixing the tariff administratively by the Home Secretary.  His submissions appear to us to be an impermissible attempt to transpose the then English system into Hong Kong.  For this reason, we need not dwell on the English cases.  In any event, most of them had already been canvassed by the Court of Final Appeal in Lau Cheong and there is nothing we can usefully add to their analysis.

52.  It follows that we must also reject Mr Fitzgerald’s submission that Tong Yu Lam should not be followed or is per incuriam.

53.  We next turn to Mr Fitzgerald’s submissions based on A v Chief Executive of HKSAR.

54.  There, the applicant was convicted of what the Judges described as a gruesome murder. He challenged the decision of the Board in the latest review of his mandatory life sentence on a number of grounds.  One of the applicant’s arguments was that the Board’s reasons amounted only to reciting section 8(c) and did not provide for its consideration of matters such as his assistance rendered to the police and his good behaviour in prison.  He was therefore unable to understand from the reasons how the Board had taken into account those personal favourable matters but still refused to recommend converting his life sentence into a determinate one.

55.  After reciting section 8(c) and schedule 1 of the Long-term Prison Sentences Review Regulation, Cap 524A which sets out the matters the Board may take into account, the Judges said:

“28. On a proper and objective reading of s.8(c) of the Ordinance, the Board should have primary regard to ‘whether the part of the prisoner’s sentence already served is sufficient, in all the circumstances (in particular given the nature of the offence for which the prisoner is being detained), to warrant consideration being given to having the prisoner released from detention early’, it seems clear to us that under this, the Board in performing its function is first to consider whether (having taking into account all the circumstances of the case before it) the applicant has already served a sufficient period of sentence which would justify (ie, ‘warrant’) the ‘consideration’ of whether the prisoner should be released early from his detention. What it means is that this ‘sufficient’ period of sentence is one which would ‘trigger’ the Board to consider whether, and if so when and how, the prisoner should be released early. When determining whether such a sufficient period is reached, the Board should look at all the circumstances of the applicant, but give particular importance to the nature of the offence convicted.

29. In other words, the ‘sufficient’ period envisaged under s.8(c) is not the period that would justify the applicant to be released.  It is only the threshold (or triggering) period that would justify or entitle the applicant to be ‘considered’ for early release.  If that threshold period has not even been reached, the Board shall not even consider whether he could be released early. It is only after this period has been reached that the Board would consider, whether and, if so, what length of sentence the applicant shall further serve before he could be released.”

56.  The Judges then dealt with the Board’s reasons.  They found that on a proper and objective reading of the reasons, the Board meant that even after taking into account the applicant’s good behavior and assistance rendered to the police, in light of the very serious nature and circumstances of his offence, he had not served a sufficient length of sentence to justify a consideration of any early release.  They were satisfied that the Board’s reasons satisfied the test laid down by the Court of Final Appeal in Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279.

57.  Mr Fitzgerald submitted that the Judges’ decision in A v Chief Executive of HKSAR correctly recognized that there is a threshold period that had to be served in light of the gravity of the prisoner’s offence which was in line with the legislative intent of section 8(c) gathered from its enactment history.  We have already rejected Mr Fitzgerald’s submissions on the tariff-fixing exercise based on the legislative history of section 8(c).  For the same reasons, its legislative history does not support his contention that section 8(c) requires the Board to fix a triggering period with reference to the gravity of the offence in determining a review.

58.  The Judges dealt with Mr Fitzgerald’s reliance on A v Chief Executive of HKSAR in the Judgment thus:

“28. With respect, we said exactly what we meant in paragraph 28 of our judgment. There was nothing to be added or read between the lines:

…

29. The ‘sufficient period’ was in our view no more than a step in the review process, having regards to the principles laid down in Section 8(c) of the Ordinance. It was obviously not our intention to divide the mandatory life sentence into further ‘sub-periods’ within the so called ‘punitive term’ or ‘punitive and deterrent elements’ of the mandatory life sentence.”

59.  Properly understood, the Judges in A v Chief Executive of HKSAR at [28] did not hold that as a matter of interpretation, section 8(c) requires the Board to fix a triggering period in determining a review.  The Judges were merely articulating the mental process that the Board may wish to undergo under section 8(c).  It does not mandate the Board to fix a triggering period in determining a review. The gloss Mr Fitzgerald put on the judgment in A v Chief Executive of HKSAR has the unsavoury effect of rewriting the statutory scheme and effectively converting the review into a 2-stage exercise.  Further, fixing a “triggering period” as contended by Mr Fitzgerald is itself a decision which would at least constrain a later review of the case by a subsequent Board, which may be differently constituted.  That cannot possibly be the intention of section 8(c).  

60.  The Judges’ view is also supported by a further analysis of the Board’s function and powers as they had elaborated at [32]-[37] of the Judgment, which is summarized at [14]-[15] above.

61.  As rightly pointed out by the Judges, under section 8(c), on each review the Board must consider the question of sufficiency by reference to all the circumstances, giving due regard in particular to the nature of the offence.  Put another way, the nature of the offence is a particular but not the only circumstance that the Board must take into account in assessing the sufficiency or otherwise of the part of the prisoner’s sentence already served.  Other than the nature of the offence, all circumstances pertaining to the prisoner, including rehabilitation and risk, are liable to change from time to time.  That being the case, the Board must have regard to the prisoner’s current circumstances as at the time of the review in assessing the sufficiency of his sentence already served.

62.  Mr Fitzgerald submitted that while circumstances might change, the punitive part of the sentence did not.  So the Board could still fix a definite period by reference to the gravity of the offence.  This is in substance a repetition of his submission that the Board should fix the tariff or a minimum term, which we have already rejected.  Further, even if such a definite period could be fixed, it does not follow that it is the sufficient period to trigger the Board’s consideration for early release.  For the Board still has to take into account other relevant circumstances at the time of the review in determining the question of sufficiency.

63.  Accordingly, we reject Mr Fitzgerald’s submissions on the Board’s duty to fix the triggering period under section 8(c) based on A v Chief Executive of HKSAR.

E3.    Conclusion

64.  In consequence, the applicant’s primary contention that section 8(c) of the Ordinance obligates the Board to fix the “tariff period” reflecting the punitive part of the applicant’s sentence or the “triggering period”, representing a sufficient threshold period warranting consideration be given to her release from detention early, fails.

F.     Duty to disclose the period

65.  We next come to the second component of the applicant’s case regarding the Board’s duty to indicate the tariff period or the triggering period as part of its reasons in an adverse decision against a review.  As noted, it is premised on the primary contention that the Board under section 8(c) is required to fix the tariff period or the triggering period, which we have already rejected. Without that main plank, it must fail.

66.  Further, as pointed out by the Judges,[22] a prisoner must be taken to know what are the matters that are relevant to the Board’s consideration of his sentence review.  They are set out in section 8 and the schedule 1 of the Long-term Prison Sentences Review Regulation.  Informed by those matters and armed with the full knowledge of his own current circumstances, he can make whatever full representations that he wishes to persuade the Board to exercise its powers in his favour.  He will not be denied the right to make an informed representation simply because he was not told beforehand or indeed at any time what, in the Board’s opinion, the tariff period or the triggering period might be.  It is not altered by the fact he had allegedly made out a reasonably arguable case for early release.  In making an adverse decision in such scenario, the Board only needs to state the reasons why it disagreed.  As long as the reasons satisfy the legal requirements, as to which see Oriental Daily Publisher Ltd, that would suffice.

67.  Lastly, on the facts, we agree with the Judges’ finding that the applicant had not been denied the right to make an informed representation simply because the Board had not indicated the tariff period or the triggering period in its adverse decision of the third review.

G.     Dispositions

68.  In consequence, we dismiss the appeal.

69.  We further make an order nisi that the applicant do pay the respondent costs of the appeal, to be taxed if not agreed.