SECRETARY FOR JUSTICE v. LI MAN FAI

HCMP2242/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.2242 OF 2004

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J U D G M E N T

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1. This is an application by the Secretary for Justice pursuant to section 67C(1) of the Criminal Procedure Ordinance, Cap.221 (“the Ordinance”) for a determination under section 67C(3) of a minimum term for the sentence of the respondent Li Man Fai imposed by the High Court in High Court Criminal Case No.25 of 1982.

Background

2. On 26 April 1982, after his trial before MacDougall J sitting with a jury, the respondent was convicted of three counts of burglary, two counts of robbery and two counts of rape.  The victims of the robbery counts were raped in the course of the robberies.  For the burglary counts the respondent was sentenced to five years each, the robbery counts to 10 years each, and for the rape counts to life imprisonment.  The judge ordered that all sentences were to run concurrently.  At the time when the respondent was sentenced, there were no legislative provisions whereby the sentencing judge was required to state a minimum term which the prisoner was required to serve for the discretionary life sentence imposed in respect of the rape counts.

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

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

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

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

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

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

8. The object of the present exercise is therefore for this court to determine the minimum term which the respondent must serve for the two rape counts for which he was sentenced to life imprisonment in 1982.

9. At his trial in April 1982 in the High Court, the respondent faced a total of eight counts in the indictment of which four were burglary, two were robbery and two were rape.  He was found guilty on all counts except one in relation to a burglary.

10. The three burglaries were committed in flats inside high rise buildings in the Yau Ma Tei area in Kowloon.  The respondent had gained unlawful access through open windows by scaling great heights along the drainage pipes attached to the exterior walls of the buildings.  He then stole properties including cash and valuables from the premises.

11. The rape and robbery counts were paired offences which took place on two separate occasions.  They involved the respondent gaining access to the victims’ domestic premises through the open windows again by climbing along the drainage pipes at the exterior walls.  The victims were invariably tied up, threatened and then raped.  The respondent would then help himself to the properties of value which he found inside the premises.

12. On the day of his conviction, the respondent’s sentence was adjourned for psychiatric reports, MacDougall J observed :

“it appears to me that you are an unmitigated menace to the community and that you need to be out of circulation for a very lengthy period of time.”

13. The hearing resumed on 10 May 1982 at which time the court had before it a report prepared by Dr P.C. Iu, the Senior Medical Officer (Psychiatry) of Siu Lam Psychiatric Centre.  The relevant conclusions in Dr Iu’s report were at paragraph 5 :

“He had no remorse at all for what he had done, and at times he appeared to be callous and unconcerned when his offences were being mentioned.”

at paragraph 6 :

“I am of the opinion that he is not suffering from any formal mental illness.  As deduced from his past criminal records and from my own observations, he is, by nature of his personality a callous person who had little regard to law and order in civilized society.”

and later :

“it would be extremely difficult for him to change his personality or life style at this stage without prolonged institutionalization at Correctional Institutes.”

14. He was sentenced on each of the rape counts to life imprisonment, on each robbery count to 10 years’ imprisonment and on each burglary count to five years’ imprisonment.  All sentences were ordered to run concurrently.  In passing sentence, MacDougall J said :

“On this occasion you had been found guilty by a jury in respect of no less than five separate incidents in which you’d entered domestic premises in blocks of flats in the dead of night through toilet or kitchen windows after having scaled drainage pipes to heights as much as 25 storeys above ground level.

It is evident that when ranging about in your nocturnal predations your object is to burgle any premises, where the occupants mistakenly assume that it is safe for them to leave open a kitchen or toilet window to admit a little air, and where there are no male occupants in the premises, to rob and rape such female as you may find who catches your fancy.  The unfortunate females who you raped on two of these occasions were threatened with a knife and offered no resistance to your advances.

I have not the slightest doubt that had either of them resisted you, you would have had not the slightest compunction in using great force to subdue her.  You were certainly not averse to using your fist on them after you had raped them and when you discovered that your victim was either attempting to release herself from her bonds or was taking a peep at you whilst you were ransacking the premises.

You were convicted of two rapes in 1975.  Those rapes were committed in circumstances similar to those in respect of which you have just been found guilty in this trial.  I have studied the file relating to the earlier cases and it is evident that your behaviour to your victims, particularly a seventeen year old virgin, was typically callous.”

later the judge said :

“You are an extremely dangerous menace from whom society must be protected.  I had considered sentencing you to a total fixed term of at least twenty years imprisonment, but I am not satisfied that such a sentence would be adequate to protect the society from you.

…

You are a frightening menace to society.  There appears to be no reasonable prospect that this menace can effectively be eliminated other than by permanently depriving you of your liberty.”

15. On 8 October 1982, the respondent applied for leave out of time to appeal against the sentences.  The application was dismissed by the Court of Appeal on 21 December 1982 and the court recommended that the appellant (the respondent in this case) be not released for 20 years.  The recommendation, I note, was made not pursuant to any then existing legislations.

Meaning of “minimum term”

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

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

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

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

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

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

18. In HKSAR v. Cheung Lai Man [2004] 2 HKLRD 475 at 488, Yeung JA said :

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

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

The Long Term Prison Sentences Review Board

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

“

(2)

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

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

The court’s approach

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

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

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

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

24. Both counsel for the applicant and for the respondent are of the view that while the present personal circumstances of the respondent are matters which should not be ignored by the court for the purpose of fixing the minimum term, the primary consideration will be the gravity of the offences for which the respondent was originally sentenced.  This, I think, must be the correct approach.  A respondent’s present circumstances, if they are relevant, would only have a marginal impact on the assessment of the appropriate minimum term at the date of the original sentence.  The risk, if any, that the respondent poses to the community in the event of his release after having served the minimum term is best left for consideration by the Board when the prisoner’s case comes before it in the future.

The appropriate “minimum term”

25. At the time of his conviction in 1982, the respondent already had six previous convictions.  He was first sent to prison for three months for committing theft in 1971.  It was followed by a 12-month sentence for burglary in 1973.  In 1975 he was sentenced to concurrent sentences of seven years’ imprisonment for two counts of rape and six years’ imprisonment for one count of robbery.  The respondent was released from prison on 17 April 1980 and within a year of his release he committed the present series of offences for which he was sentenced to life imprisonment.  The fact that the respondent had committed similar offence within such a short time must have a significant impact on the MacDougall J when he passed the life sentence.  I share his view that the respondent was a serious menace to the community so that the public must be protected.

26. Putting myself into the position of the sentencing judge, if I were to pass determinate sentences of five years for the burglary counts, 10 years for the robbery counts and 10 years to the rape counts which was the same sentence passed by MacDougall J, the respondent would have been sentenced to a total sentence of 50 years’ imprisonment if all sentences were to run consecutively.  Taking into consideration the totality principle, I would have no difficulty in arriving at a figure of 30 years’ imprisonment as the appropriate global term by adjusting the sentences to be part concurrent and part consecutive.  Had the respondent not been sentenced to a life term for the rape charges, he would have been given a global sentence in the region of 30 years.

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

28. The contents of the Correctional Services reports in the present case suggest that the respondent had expended some efforts to reform himself and had shown a strong sense of remorse for what he did.  The Clinical Psychologist Ms K.S. Lee, however observed that :

“… his past history as characterized by sex offence record, past antisocial history, re-offending shortly after release and unstable employment point to long-term risk of sexual re-offending.”  The Consultant Psychiatrist, Dr S. H. Lui, is of the opinion that in the event of the respondent’s release, he should be closely supervised and given all necessary assistance.  He may require to adjust to his rediscovered freedom.”

29. From the contents of these reports it remains uncertain whether the respondent may or may not pose a threat to the community in the event of his release.  This aspect of the case, including the degree of success of the respondent’s rehabilitation, in my view, are best left to be addressed by the Long Term Prison Sentences Review Board when the respondent comes before it for review in the future.  The content of the reports and letters of recommendation before me does not affect my view that the appropriate sentence for the respondent should be one of 30 years.

30. A prisoner would usually be entitled to a discount of up to 1/3 nett prison term so that the actual term he has to serve, taking 1/3 off the sentence of 30 years, could be a term of 20 years.  For the reason stated above I determine the minimum prison term that the respondent must serve for the two offences of rape to be 20 years.