TONG YU LAM v. THE LONG-TERM PRISON SENTENCES REVIEW BOARD

HCAL 18/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 18 OF 2005

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J U D G M E N T

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Introduction

1. In September 1993, the applicant was convicted of murder.  At the time of the murder he had been in his early forties.  Accordingly, in terms of s.2 of the Offences Against the Person Ordinance, Cap.212, which had been enacted in April 1993, the sentence imposed upon the applicant was mandatory.  The sentencing judge was bound by the terms of the Ordinance to impose a sentence of life imprisonment.  The applicant continues to serve that sentence.

2. Murder committed by an adult; that is, a person 18 years or older, is the only offence in respect of which it is ordained by statute that the court must impose a sentence of life imprisonment.

3. Mandatory life imprisonment has been described by the Court of Final Appeal (Lau Cheong v. HKSAR [2002] 3 HKC 146 (para.118)) as a ‘uniquely serious punishment’.  The offender commits a crime of such gravity in the eyes of the community that, in principle, he forfeits his liberty for the rest of his days.  He will therefore remain in custody until and unless the Chief Executive, exercising clemency in terms of art.48(12) of the Basic Law, concludes that the public interest would be better served by the offender’s release at some determined date rather than by his continued indefinite detention.

4. Life imprisonment, however, may be imposed as a maximum punishment in respect of a number of other offences; for example, kidnapping or rape.  In such cases, however, the court – in the exercise of its discretion – will only impose that sentence when it is considered appropriate to do so.

5. Hong Kong law therefore recognises two forms of life sentence, a mandatory life sentence and a discretionary life sentence, both being indeterminate sentences.  As Lord Mustill expressed it in R. v. Home Secretary, ex parte Doody [1994] 1 AC 531, at 550, although the words pronounced by the sentencing judge are the same, the philosophy, statutory framework and executive practice in respect of the two forms are quite different.

6. In the working out of; that is, in the practical application of, the two sentences, the fundamental difference between the two is that a court, when it imposes a discretionary life sentence, is required to specify what it considers to be the minimum period of time that must be served for the offence.  No such obligation, however, is imposed on the court when it imposes a mandatory life sentence.

7. In respect of discretionary life sentences, s.67B(1) of the Criminal Procedure Ordinance, Cap.221, enacted in 1997, reads :

“When imposing a discretionary life sentence on a person for an offence, the judge must specify as part of the sentence a minimum term that the person must serve for the offence.”

8. The ‘minimum term’ addresses what the court, at the time of sentencing, considers to be appropriate to reflect the nature and gravity of the offence.  As Stock JA expressed it in HKSAR v. Hui Chi Wai (unreported, CACC 78/1999), what the court primarily addresses is the punitive and deterrent elements dictated by the offence considered in the light of the current circumstances of the offender.

9. It has been said that a discretionary life sentence, therefore, may be described as the sum of two sentences to be served consecutively.  First, a determinate number of years specified by the sentencing judge and, second, an indeterminate period which follows the minimum term in which matters such as continuing risk to the community are assessed.

10. What this means, of course, is that a person sentenced to a discretionary life sentence has a ‘target date’ to aim for.  That person will know that, subject to rehabilitation, the minimum term will comprise the greatest bulk of his sentence, perhaps even the total of it.  As Lord Woolf MR said of the practice in the United Kingdom :

“… it allows [an] offender to know the period during which he is unlikely to be released and when he should prepare himself to put forward representations.  The objection which is most often made by those subject to an indeterminate sentence is its uncertainty.  They need a target date.  (cited in R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407, per Lord Goff at 483E)

11. In Hong Kong, however, mandatory life imprisonment offers no such ‘target date’.  Conceptually, a mandatory life sentence must be served on the basis that the offender is in custody for the rest of his days until, and unless, the Chief Executive, as an executive act, exercises clemency pursuant to his powers under art.48(12) of the Basic Law.

12. Central to this application for judicial review is the assertion made on behalf of the applicant that the denial of a ‘target date’ to an offender serving a sentence of mandatory life imprisonment is unconstitutional.  As Mr Harris, the applicant’s counsel, put it, the nature of the application can be summed up in a single question : is an offender serving a mandatory life sentence entitled in law to be informed of the punitive and deterrent element of his sentence?

13. Certain other issues have been raised by Mr Harris on behalf of the applicant but their resolution largely depends on the determination of this central issue.

Relevant background

14. What, in our view, must be understood at the outset is that, while an offender serving a mandatory life sentence is given no minimum term which he knows he must serve in order to meet the punitive and deterrent elements of his sentence, he does have the assurance that, in considering whether to exercise clemency, the Chief Executive must take into account the recommendations of the Long-term Prison Sentences Review Board (‘the Board’), a statutory body tasked with the continuing obligation of giving consideration to his individual circumstances.

15. The Board is established in terms of the Long-term Prison Sentences Review Ordinance, Cap.524 (‘the Review Ordinance’).  The Ordinance was enacted in 1997.

16. As to the functions of the Board in respect of offenders serving mandatory life imprisonment, the Court of Final Appeal in Lau Cheong v. HKSAR described them as follows :

“94.  The Board’s essential function is to give individual consideration to offenders and their cases in relation to certain sentences, including life sentences, both mandatory and discretionary : s 7.  The Board, consisting of eight to ten members appointed by the Chief Executive, is required to have a range of expertise.  It must include two judges or former judges of the Court of First Instance (as its President and Deputy President), a psychiatrist, a psychologist, a social worker, a barrister or solicitor, an educator and a person engaged in industry or commerce. Among the members appointed, at least one must have expertise and experience in the rehabilitation of offenders : s 6.

95. The Board has a statutory duty to consider each individual case at the regular intervals prescribed.  In the case of a mandatory life sentence, this begins 5 years after the start of the sentence and takes place at least every 2 years thereafter : s 11(2).  To facilitate its review, it can call for reports from the Commissioner of Correctional Services, the Commissioner of Police, the Registrar of the High Court and the Director of Social Welfare : s 14.

96. In conducting its review of each sentence, the Board is required to have primary regard to the following principles : (a) where the prisoner’s rehabilitation is not complete, the rehabilitative effect of release; (b) the benefits to the prisoner arising from supervision after release with a view to securing rehabilitation and reintegration into the community; (c) whether the part of the sentence served is sufficient to warrant consideration of early release; (d) the need to protect the community from reasonably foreseeable harm by the prisoner as a result of early release : s 8.  The Board is also permitted to take into account various matters set out in regulations which reflect these principles and any other matters which the Board considers relevant : Long-Term Prison Sentences Review Regulations, s 2.”  [paras.94-96]

17. As to the review of a life sentence by the Board, the Court of Final Appeal (para.98) said that it may —

“… recommend to the Chief Executive substitution of a determinate sentence and thereafter, it may further recommend remission of all or part of the determinate sentence : s 15(1)(a).  When acting on the Board’s recommendation, the Chief Executive exercises his powers under BL art 48(12) to pardon persons convicted of criminal offences or to commute their penalties.  Where the Board wishes to defer recommending conversion of a life sentence into a determinate one, it may make a conditional release order: s 15(1)(b).  Such conditional release orders take effect directly and without need for a recommendation to the Chief Executive.  The order may be for up to two years and may be subject to conditions, for example, as to prescribed places of residence and employment, etc : s 18.  Where the life sentence has been converted into a determinate sentence and the prisoner has served not less than two thirds of it, the Board may make an order directing the prisoner’s early release under supervision : ss 15(1)(c) and 18.  As with a conditional release order, such an order takes effect directly and is not a matter of recommendation to the Chief Executive.”

18. In April 2003, having been in custody for more than ten years, the applicant petitioned the Chief Executive pursuant to art.48(12) of the Basic Law seeking to have his indefinite sentence of mandatory life imprisonment substituted with a determinative sentence; that is, a sentence stated to be for a specific period of time.  As it was put in his petition :

“All he wants is to be told how long he has to serve in prison.  This is not an unreasonable request for a man who is at the age of 53 already.”

19. The Chief Executive formed the view that the petition was not meritorious and that he should not at that time exercise his powers of clemency.  Instead, he referred the matter to the Board in terms of s.12(1) of the Review Ordinance, requesting the Board to carry out a review of the applicant’s sentence.

20. In terms of s.12(1) of the Review Ordinance, upon such a request from the Chief Executive, the Board is obliged to conduct a review.  The review took place on 5 October 2004, being incorporated in to the biennial review required to be conducted pursuant to s.11(2) of the Review Ordinance.

21. As to the result of the review, in a letter to the applicant dated 3 November 2004 the Secretary of the Board said :

“… your sentence was reviewed by the Long-term Prison Sentences Review Board on 5 October this year in accordance with the request of the Chief Executive.  It was decided that no recommendation should be made on your sentence.  This recommendation has been accepted by the Chief Executive.”

22. As to the reasons for the Board’s decision, the letter to the applicant said the following :

“During the review, the Board took into consideration all the reports and documents obtained, your written representations and other relevant matters, including your views raised in paragraph 37-39 of the petition to the Chief Executive relating to the sentence review conducted on 27 September 2002.  The Board noted that you had been incarcerated for 11 years (from the date of the sentence).  However, no matter what might have been the reasons for the act, the crime you committed was very serious.  The Board considered that you had not served the punitive part of the sentence.  Nevertheless, your above views will be considered when the Board reviews your sentence in the future.”

23. It is this decision of the Board which is the subject of this application for judicial review.

24. As we have said earlier, it is the applicant’s case that an offender serving a mandatory life sentence is constitutionally entitled to the same degree of certainty concerning the length of his sentence as an offender serving a discretionary life sentence.  That being so, as we have understood his submissions, Mr Harris has contended on behalf of the applicant that, whether determined by the Court of First Instance or by the Board itself, which for that purpose sits as a court, an offender serving a mandatory life sentence must be informed, either by the Court when sentenced is passed or thereafter by the Board, of the minimum term that he must serve to reflect the punitive and deterrent elements of his sentence. 

25. Accordingly, so it has been asserted :

(i)   Relevant legislation which excludes the requirement to specify a minimum term for offenders serving a mandatory life sentence is unconstitutional.

(ii)   The decision of the Board conveyed to the applicant in the letter of 3 November 2004, in so far as it did not specify a minimum term, is unlawful.

The relevant legislation

26. The duty imposed on a court to specify a minimum term when imposing a discretionary life sentence came into effect in 1997 when s.67B(1) of the Criminal Procedure Ordinance was enacted. 

27. So that certain classes of offenders, called ‘prescribed prisoners’, already serving life sentences would be subject to the same regime, the Criminal Procedure Ordinance was amended in 2004.  In terms of the amendment, s.67C, as read with s.67G, directs that, on an application to the Court of First Instance, ‘prescribed prisoners’ will have a minimum term specified in respect of their existing sentences.

28. In terms of s.67G, however, ‘prescribed prisoners’ excludes offenders such as the applicant who, as adults, have been sentenced to mandatory life imprisonment.

29. It is the applicant’s case that this exclusion, in so far as it fails to treat murderers who were adults at the time they committed their crimes in the same or a substantially similar manner to ‘prescribed prisoners’, is inconsistent with art.28 of the Basic Law, art.9(1) of the International Covenant on Civil and Political Rights (‘the ICCPR’) and art.5(1) of the Hong Kong Bill of Rights (‘the BOR’), all of which prohibit arbitrary detention or imprisonment.

30. The exclusion, it is submitted, discriminates so profoundly against those sentenced to mandatory life imprisonment that it results in terms of imprisonment for those offenders which are manifestly disproportionate and therefore arbitrary.

The relief sought

31. In light of the matters which we have outlined, the applicant has sought the following relief :

(i)   A declaration that s.67C, as read with s.67G, of the Criminal Procedure Ordinance, in so far as it is limited to ‘prescribed prisoners’, which excludes offenders who were sentenced as adults to mandatory life imprisonment for murder, is inconsistent with art.28 of the Basic Law, art.9(1) of the ICCPR and art.5(1) of the BOR.

(ii)  An order of certiorari to bring up and quash the decision of the Board communicated to the applicant by letter dated 3 November 2004 and an order of mandamus remitting the matter either to the Board or to a judge of the Court of First Instance for rehearing in accordance with law [that rehearing to include the specification of a minimum term].

The true nature of what is sought

32. In light of Lau Cheong v. HKSAR, the applicant accepts, as he must, that the imposition of a mandatory sentence of life imprisonment is constitutionally valid.  The applicant’s challenge goes instead to the fact that the nature of a mandatory life sentence, as it must be endured by an offender, is materially different from the nature of a discretionary life sentence.

33. If the applicant’s submissions are correct, we must find that, once imposed, all life sentences must, as a form of sentence, have the same characteristics.  The result, in respect of an offender given a mandatory life sentence, would be as follows.  At the time of sentencing by a court, or within a short time of sentencing by the Board acting as a court, as with an offender given a discretionary life sentence, he would be entitled in law to be given the minimum term that he must serve to satisfy the penal element of his sentence.  That minimum term being given, it would follow that, once it is served, the offender can expect, if he is able to demonstrate that he is rehabilitated and poses no continuing risk to the community, to be able successfully to plead for his freedom.

34. In our judgment, however, the insurmountable difficulty faced by the applicant is that the judgment of the Court of Final Appeal in Lau Cheong v. HKSAR, in holding that the imposition of a sentence of mandatory life imprisonment was constitutionally valid, did so in recognition of the following; first, that, in respect of a matter where views of members of the community can differ on valid grounds, the legislature was entitled to mark out murder by an adult as a crime of unique gravity deserving of particular severity and, second, that mandatory life imprisonment, as an indeterminate sentence of the traditional kind; that is, as applied in Hong Kong, was in its nature neither arbitrary nor cruel, inhuman or degrading.  We therefore turn briefly to consider the findings made by the Court of Final Appeal.

Lau Cheong v. HKSAR

35. In finding that the mandatory life sentence was constitutionally valid, the Court of Final Appeal noted that in Hong Kong the crime of murder had always been regarded as the most serious of crimes.  As the court put it, “the offence is unique in that, for adult offenders, it has always carried a mandatory sentence”.

36. The court accepted that determining an appropriate punishment for murder by an adult was bound to be a controversial issue involving ‘differing views on the moral and social issues involved’.  The court accepted, therefore, that, in respect of an appropriate punishment for murder by an adult, which involved difficult choices having to be made between the rights of individuals and the needs of society, proper weight had to be given to the decision reached by the legislature.  In this regard, the court said :

“As is clear from the legislative history of the mandatory life sentence provisions, the question of the appropriate punishment for what society regards as the most serious crime is a controversial matter of policy involving differing views on the moral and social issues involved.  The legislature has to make a difficult collective judgment taking into account the rights of individuals as well as the interests of society.  It has to strike a balance bearing in mind the conditions and needs of the society it serves, including its culture and traditions and the need to maintain public confidence in the criminal justice system.”  [para.105]

37. The court took into account the legislative history that had resulted in April 1993 with the abolition of mandatory capital punishment for murder by an adult and its replacement by mandatory life imprisonment.  In doing so, the court observed that the legislature’s clear intention, following history, was to treat the crime of murder by an adult as unique in its gravity and deserving of a punishment into itself.  Indeed, the court noted that a significant number of members of the legislature had wished to maintain mandatory capital punishment :

“… different views had been expressed, including the view (which had support which was not insignificant) that the mandatory death penalty should not only be retained, but should be carried into effect.  Ultimately, the opposing school which favoured abolition of the death penalty carried the day but this was achieved only on the basis that it would be replaced by the mandatory life sentence. 

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 life sentence.  Manslaughter and offences falling short of the full offence of murder such as conspiring or soliciting to commit murder attract only a discretionary life sentence : ss 5 and 7 of the Offences Against the Person Ordinance.  And when the original bill proposed that treason and piracy with violence should equally be made subject to a mandatory life sentence, the legislature rejected that proposal and made the sentence for those offences discretionary life imprisonment.”  [paras.107 and 108]

38. Importantly, the Court of Final Appeal accepted, as a lawful sentencing objective, the legislature’s decision to impose a sentence which was in response to the crime itself irrespective of the circumstances of the individual offence or offender.  In this regard, the Court of Final Appeal made reference to Wynne v. United Kingdom (1994) 19 EHRR 333, a judgment of the European Court of Human Rights.  In that judgment, the European Court accepted as valid in principle the distinction between a mandatory life sentence imposed because of the inherent gravity of the crime itself and a discretionary life sentence imposed because of the particular culpability of an individual.  The court said :

“This view was taken because of the very nature of the discretionary life sentence which, unlike the mandatory sentence, was imposed not because of the inherent gravity of the offence but because of the presence of factors which were susceptible to change with the passage of time, namely mental instability and dangerousness.  A clear distinction was drawn between the discretionary life sentence which was considered to have a protective purpose and a mandatory life sentence which was viewed as essentially punitive in nature.”

39. In light of this, we return briefly to the present application.  It seems to us that, if the Court of Final Appeal accepted as constitutionally valid the decision of the legislature to accord murder by an adult with a unique punishment, essentially punitive in nature, then, absent a compelling argument to the contrary, we would find it difficult to conclude that the adherence by the legislature to that same decision in respect of the amendments to the Criminal Procedure Ordinance contained in s.67C, as read with s.67G, were not also valid. 

40. We emphasise again that, in holding that the mandatory imposition of life imprisonment for murder by an adult was not an arbitrary nor a cruel, inhuman or degrading punishment, the Court of Final Appeal recognised the particular nature of the sentence as it was applied in Hong Kong; that is, as a traditional indeterminate sentence.

41. In particular, the Court of Final Appeal recognised that in England and Wales, as a result of the operation of executive policies, there had been important developments as to the manner in which mandatory life imprisonment once imposed, was to be applied.  In this regard, the court observed (at para.150) that :

“Mandatory life imprisonment has been the sentence for murder in the United Kingdom since 1965, when the mandatory death penalty was ultimately abolished.  Like other life sentences, it was treated as an indeterminate sentence along traditional lines.  However, in 1983, the Home Secretary announced that he would adopt the practice of fixing 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.”  [my emphasis]

42. The Court of Final Appeal noted, however, that these developments in England and Wales (which had given rise to a good deal of jurisprudence) had not been followed in Hong Kong.

43. As to future developments in England and Wales as a result of the practice of fixing a ‘tariff’ for both mandatory and discretionary sentences, the Court of Final Appeal, of course, could only speculate.  But it went on to emphasise :

“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.”  [para.159]

44. The description referred to by the Court of Final Appeal was contained in an address by the Minister of State to the House of Commons in 1991.  The address was to the following effect :

“In a discretionary case … the presumption is that once the period that is appropriate to punishment has passed, the prisoner should be released if it is safe to do so.  The nature of the mandatory sentence is different.  The element of risk is not the decisive factor in handing down a life sentence.  According to the judicial process, the offender has committed a crime of such gravity that he forfeits his liberty to the state for the rest of his days.  If necessary, he can be detained for life without the necessity for subsequent judicial intervention.  The presumption is, therefore, that the offender should remain in custody until and unless the Home Secretary concludes that the public interest would be better served by the prisoner’s release than by his continued detention.  In exercising his continued discretion in that respect, the Home Secretary must take account not just of the question of risk, but of how society as a whole would view the prisoner’s release at that juncture.”

45. This address to the House of Commons was originally cited by Lord Mustill in R. v. Home Secretary, ex parte Doody when he considered the degree to which the fixing of a ‘tariff’ had altered the nature of mandatory life imprisonment as an indeterminate sentence.  In describing the nature of the sentence prior to the introduction of the ‘tariff’ scheme, Lord Mustill spoke of an offender subject to that sentence having no expectation of being released before the expiry of his sentence, only a hope that the Home Secretary may, in exercising a very broad discretion, exercise clemency.  Looking at the impact of the ‘tariff’ scheme, Lord Mustill said :

“This reasoning is however much weakened now that the indeterminate sentence is at a very early stage formally broken down into penal and risk elements.

The prisoner no longer has to hope for mercy but instead knows that once he has served the ‘tariff’ the penal consequences of his crime have been exhausted.  Even if the Home Secretary still retains his controlling discretion as regards the assessment of culpability the fixing of the penal element begins to look much more like an orthodot sentencing exercise, and less like a general power exercised completely at large.”

46. In summary, in our judgment, the Court of Final Appeal accepted that, whatever the changes in other jurisdictions, in Hong Kong mandatory life imprisonment remained a sentence which authorised the indeterminate incarceration of a person which would only be brought to an end by the death of that person or, if at all, the Chief Executive, in the exercise of the executive act of clemency, determined that the public interest would be better served by that person’s release.

What was not determined by the Court of Final Appeal

47. On behalf of the applicant, Mr Harris argued that, among the many challenges made to the constitutional validity of mandatory life imprisonment considered by the Court of Final Appeal, there was no challenge based on the contention that a fair sentence requires a mandatory life prisoner to be told the penal term of his sentence.  That is correct.  The amendments to the Criminal Procedure Ordinance which are challenged as being unconstitutional were enacted in 2004, some two years after the Court of Appeal’s judgment.

48. But, as we have said, and we repeat, the Court of Final Appeal held that the legislature was entitled in law to mark out murder by an adult as a crime unique in gravity deserving of a unique penalty.  As we see it, the amendments to the Criminal Procedure Ordinance made by the legislature, in excluding mandatory life prisoners, did no more than underscore the legislature’s intention to maintain the penalty as it had been; that is, as a unique penalty for a crime, in the eyes of the Hong Kong community, of unique gravity.

49. Every condemned offender, said Mr Harris, is entitled to know the true nature of his sentence.  An offender sentenced to mandatory life imprisonment, however, is left in such a state of uncertainty as to how long he will actually have to serve that the sentence he must serve is never truly known to him, not until, if ever, he is informed that the Chief Executive has determined to show him clemency.

50. We do not agree.  A mandatory life prisoner knows that, in principle, he has forfeited his liberty for the rest of his days.  He knows the nature of his sentence.  He can have no expectation for release within a particular time.  If he has any expectation it is only that, at appropriate times and in an informed manner, executive clemency will be considered.

51. Mr Harris argued that it is notorious that mandatory life imprisonment rarely means life.  The sentence therefore incorporates a fallacy.  In our judgment, however, the fact that mandatory life prisoners rarely spend the rest of their lives in prison does not alter the essential nature of the mandatory sentence or alter the distinction between what is now a mandatory and a discretionary life sentence.

52. Put simply, as we understand it, the Court of Final Appeal has held that there can be no reason in principle why a particular class of crime cannot rationally be viewed as so heinous that it deserves lifelong incarceration for purposes of pure punishment.  Murder by an adult has been placed into that category.  For that reason, even though an offender has a hope of clemency, he can have no expectation of it.

Conclusion

53. No doubt, as an issue of policy, it can be argued that the exclusion of mandatory life prisoners from the benefits granted by the amendments to the Criminal Procedure Ordinance does not constitute fair sentencing.  That, however, is a matter for the legislature not for this court.

54. For the applicant to show that the exclusion of mandatory life prisoners is arbitrary and thereby unconstitutional, it must be demonstrated that the decision to deny such prisoners the benefits of the amendments has resulted in the sentences imposed upon them now being manifestly disproportionate.  The Court of Final Appeal in Lau Cheong v. HKSAR (in para.112) expressed it this way :

“… where imprisonment is lawful, that is, where it is ordered pursuant to duly constituted laws, a high threshold must be crossed before those laws can be struck down on the basis that the imprisonment pursuant thereto is disproportionate.  It must be sufficiently disproportionate to justify describing the law as ‘arbitrary’ (a disproportion so great as to reduce the law virtually to something capricious, unreasoned or without reasonable cause).”

55. We accept that the nature of the punishment of mandatory life imprisonment is severe.  But the fact that its nature remains unaltered while discretionary life imprisonment has been changed – in our view, a very clear legislative intention – cannot of itself be evidence that mandatory life prisoners are now faced with a sentence so manifestly more severe than discretionary life prisoners that it has been rendered capricious or unreasoned.

56. We accept that in the great majority of cases it is of assistance to a discretionary life prisoner to know how long he must serve in order to meet the penal element of his punishment so that only the second stage of his sentence, what we may call the rehabilitative stage, remains uncertain.

57. But what must be remembered is that the mandatory life prisoner is not forgotten.  Even though his sentence is for an indeterminate time to be ended by his death in prison or by an executive act of clemency, the key is not thrown away.  The Board must regularly review his circumstances and, when required, as for example in the present case, report to the Chief Executive.  The mandatory life prisoner may not have the benefit of knowing the minimum term he must serve but he does have the benefit of knowing that his progress in prison is the subject of regular reviews by a statutory body that is able to marshall a broad range of expertise.  He therefore has the benefit of knowing that any consideration of executive clemency will be informed.

Additional challenges

58. Although a number of additional challenges were made, only two were pursued.  They were, first, the asserted failure of the Board to advise the applicant that he was entitled as of right to make representations at an oral hearing at which, if he wished, he could be represented by counsel and, second, the asserted failure of the Board, in advising the applicant of the result of its review, to provide adequate reasons.

59. By way of a postscript, it should be mentioned that one of the grievances raised by the applicant in his petition to the Chief Executive, which was referred to the Board, was the fact that the coming into force of the Crimes (Amendment) Ordinance 1993 had been interpreted as having retrospective effect, allowing a majority verdict in his case.  The applicant had been convicted of murder by a six to one majority.

60. Whether the amending legislation applied to persons tried after it came into effect in respect, however, of a murder committed before it came into effect was determined by the Court of Appeal in R. v. Lai Hon Man [1994] 2 HKC 210.

61. Mr Harris accepted that the judgment of the Court of Appeal bound the Board and, of course, this court.  However, he reserved the applicant’s position for consideration by a higher court should that be necessary.

The right to an oral hearing before the Board

62. On behalf of the applicant, Mr Harris submitted that it is now well established that reviews of sentence carried out by the Board are sentencing functions and, as such, demand an oral hearing.

63. Mr Harris accepted that, in respect of the Board’s review carried out on 5 October 2004, the applicant did not request an oral hearing.  He did not, do so, Mr Harris said, because the applicant understood – as was in fact the case – that the Board had never exercised the discretion vested in it in terms of s.12(5) of the Review Ordinance to allow oral representations.  In the circumstances, Mr Harris said, the fact that the applicant did not request an oral hearing, which would have been futile, and which he was aware would have been futile, cannot excuse the procedural defect of not affording an oral hearing.

64. The contention that it is now ‘well established’ that all reviews of sentence by the Board constitute a sentencing function and as such constitute a judicial function and not an administrative one, is based, as we understand it, on the findings of Tang J (as he then was) in Yau Kwong Man v. The Long-term Prison Sentence Review Board (unreported, HCAL 34/2004).  In our view, however, the judgment does not extend as far as Mr Harris advocated. 

65. It is important to note that in his judgment Tang J was looking to the entitlement in law of a prisoner whose sentence of life imprisonment had been broken down into the two consecutive sentences which we have earlier described as being characteristic of a discretionary life sentence.  The matter before us, however, concerns an offender serving mandatory life imprisonment, a sentence that we have found remains a traditional indeterminate sentence.

66. In his judgment, Tang J summarised his reasoning, both in respect of the requirement for an oral hearing and the need for the Board to give adequate reasons, as follows :

“(1) The sentence … is a sentence in two parts.

(2)  The first part of the sentence, namely, the minimum term, represents the punitive and retributive part of the sentence and must be determined by the judiciary …

(3)  The second part, namely, the possible detention after the minimum term, must also be determined by the judiciary, Basic Law 80, or by a court, Article 5(4) BOR.  Continued detention must be justified.  The burden is not on the prisoner to justify release.

(4)  The continued detention must be for a valid reason.  Dangerousness is a valid reason.  Lack of rehabilitation is not a valid reason.  Or if it could be a valid reason, the circumstances have to be truly exceptional.

(5)  Insofar as the Review Board ‘decides’ on the continued detention, the Review Board is required to give reasons which should be sufficiently detailed so as to make clear to the applicant why the Review Board decided as it did.  The reasons given should be intelligible and must adequately meet the substance of the arguments advanced.  The reasons given should broadly inform as to the reason why a decision has been reached.

(6)  Having regard to the fact that the Review Board was performing a sentencing function, an oral hearing is required.

(7)  The reasons given were inadequate.  It is not clear on what basis the decisions ‘to continue detention’ was made.”  [para.96]

67. Tang J’s conclusions were therefore based on the finding that the Board, in determining the ‘second part’ of the applicant’s sentence was performing a judicial function and not an administrative one.  He put this beyond doubt when, having been referred to various authorities related to the exercise of disciplinary or administrative powers, he said :

“But here I am dealing with the determination (which may be from time to time) of the second part of the applicant’s sentence.  In my opinion, this is the performance of a judicial function even if it could be performed by the Review Board.  Hence … I am not dealing with a disciplinary matter, nor with the exercise of an administrative power …”  [para.92]

68. In our judgment, however, in reviewing the sentence of a mandatory life prisoner, the Board is not conducting a judicial function, it is conducting an administrative function.  As we have said, the sentence of a mandatory life prisoner is not broken down into a minimum term, to exhaust the penal element of the punishment, and a rehabilitative term, to ensure essentially that the prisoner does not pose a continuing risk.  A mandatory life prisoner must expect to spend the rest of his days in prison and can only hope for release by means of an executive act of clemency.  That being the case, it must follow, we think, that, in reviewing a mandatory life prisoner, the Board is not involved in determining any form of sentence but in the fair and rational administrative implementation of a sentence already passed, the essential aim being to ensure that, in considering whether to exercise clemency, the Chief Executive is able to do so in an informed manner.

69. If, therefore, in respect of a mandatory life prisoner, the Board conducts an administrative function, one aimed at being able to advise the Chief Executive as to matters of clemency, the only issue is whether, in fulfilling that function, the Board acts fairly.  In R. v. Home Secretary, ex parte Doody, in a seminal passage, Lord Mustill described the dictates of fairness in the following terms :

“What does fairness require in the present case?  My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment.  They are far too well known.  From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.  (2) The standards of fairness are not immutable.  They may change with the passage of time, both in the general and in their application to decisions of a particular type.  (3) The principles of fairness are not to be applied by rote identically in every situation.  What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.  (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.  (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.  (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”  [p.560]

70. Fairness, therefore, in the conduct of an administrative function, may require an oral hearing but does not demand it. 

71. S.12(5) of the Review Ordinance gives the Board the discretion to conduct oral hearings.  It does not demand that the Board does so.  The section reads :

“When a prisoner’s sentence is reviewed by the Board, the prisoner is entitled to make written representations to the Board with respect to matters relevant to the review and may, if a regulation under this Ordinance so provides or with the consent of the Board, appear before the Board, either personally or through a representative of the prisoner’s choice, to be heard and to make oral representations and adduce evidence to the Board with respect to those matters.”

72. The discretion given by statute must therefore be exercised when, in any particular set of circumstances, fairness demands.  However, the submission made by Mr Harris was that a failure to conduct an oral must in all instances amount to a procedural irregularity.  In respect of mandatory life prisoners, we do not agree.

73. The common law requires only that the applicant in the present case should have been given a sufficient and fair opportunity to put his case.  In our view, such an opportunity was given without the need for an oral hearing.  Nothing was put before us to suggest that the circumstances of the applicant, in the manner of the serving of his sentence, were exceptional.  There was no suggestion, for example, and we do not think there could have been, that, having regard to the length of his incarceration, the applicant’s case demanded that he be able, directly or through counsel, to properly put his case face to face.  In this connection, it is worth noting that the petition presented on his behalf was drafted by a professor of law in a detailed and thorough manner.

74. Accordingly, we are satisfied that the Board did not act unlawfully in following what was known to be its normal practice, more especially as, an oral hearing being a matter of discretion to be determined in the light of relevant circumstances, the applicant did not see fit to ask for such a hearing.

The adequacy of the Board’s reasons

75. In the letter of 3 November 2004, the Secretary to the Board informed the applicant that no recommendation had been made to the Chief Executive in respect of his sentence.  As to why this was so, the letter said :

“The Board noted that you had been incarcerated for 11 years (from the date of the sentence).  However, no matter what might have been the reasons for the act, the crime you committed was very serious.  The Board considered that you had not served the punitive part of the sentence.”

76. On behalf of the applicant, Mr Harris submitted that these reasons were inadequate.  As Mr Harris put it, the applicant was advised that he had not yet served the ‘punitive part’ of his sentence but was given no idea of what the punitive part of his sentence actually was.  In particular, said Mr Harris, the applicant could not know whether, by the time of his next review, he would have served the punitive part or not.  In the result, the applicant was left in a state of uncertainty.

77. Mr Harris also submitted that the reasons given in the letter of 3 November 2004 were simply a repetition of the words used to explain two earlier reviews in 2000 and 2003.  Mr Harris accepted that repetition in itself did not invalidate reasons.  The point he made was that the narrow focus of the language emphasised the central importance of identifying the punitive part of the applicant’s sentence.

78. With respect, we think this challenge is misconceived.  In principle, as we have attempted to make clear, the entire sentence of mandatory life imprisonment is punitive.  In that respect it is a singular sentence.  It is not, as the applicant would wish it, broken down into any kind of formal stages or parts.

79. In conducting its review in October 2004, the Board was not determining a sentence, it was not acting in a judicial capacity and had no obligation in law, whether upon the request of the applicant or otherwise, to bind itself to the determination of any kind of minimum sentence.  

80. We accept that the Board, in giving its reasons, should ideally have used more exact language.  The suggestion that, in the opinion of the Board, the applicant had not yet served ‘the punitive part’ of his sentence may be read as suggesting that the Board was obliged to determine, or had in fact determined, a ‘punitive’ period to be distinguished, for example, from a ‘rehabilitative’ or ‘risk’ period.  Understood, however, in the light of the nature of the mandatory life sentence – the entire span of which is essentially punitive – the Board, in giving its reasons, was saying no more than that, having regard to nature of the applicant’s criminal act, there being no special circumstances, personal or otherwise, it was still too early, in its opinion, to consider making any recommendation to the Chief Executive in respect of his final decision, made in the exercise of a broad executive discretion, whether to exercise clemency.

81. The Board’s reasons were brief but the issue did not require a complex exposition.  Its reasons were not inadequate.

Final conclusion

82. For the reasons given in the body of this judgment, we are satisfied that the review of the applicant’s sentence conducted in October 2004 was not vitiated by substantive error of law or procedural irregularity.  The application for judicial review is dismissed.  Costs will follow the event.