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

CACV 230/2018

[2020] HKCA 784

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)

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JUDGMENT

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

Introduction

1.  By a judgment[1] handed down on 18 June 2020, we dismissed the applicant’s appeal against the judgment of Au J (as he then was) and Andrew Chan J dated 17 May 2018[2] dismissing her application for judicial review against the decision of the Long-term Prison Sentences Review Board (“the Board”) dated 28 April 2016 whereby the Board refused to make a recommendation to the Chief Executive to convert her sentence to a determinate one.  We also ordered the applicant to pay the respondent the costs of the appeal, to be taxed if not agreed.

2.  By a notice of motion dated 13 July 2020, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

3.  Since the filing of the written submissions and while judgment is pending, the applicant on 2 September 2020 made an application for legal aid.  Her legal aid application does not impact on the merit of her present application.  We therefore lift the 42-day legal aid stay and now hand down our judgment.

Questions raised

4.  In the notice of motion, the applicant raised the following questions which, by reason of their great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision:

“When [the Board] carries out reviews of the indeterminate sentence of a prisoner serving a mandatory life sentence under the Long-term Prison Sentences Review Ordinance (Cap 524) (‘the Ordinance’) to decide whether to make a recommendation to the Chief Executive that his sentence be converted to a determinate one to facilitate his early release from detention, whether:

(a) On the true construction of section 8(c) of the Ordinance and as a matter of rationality, the Board should identify the period of detention which it considers 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’? (Question 1)

(b) As a matter of fairness and natural justice when giving reasons for an adverse decision, the Board should indicate to the prisoner the period of detention which it considers 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’? Should the Board as part of its reasons for an adverse decision at least communicate that period to a prisoner who has a reasonably arguable case that consideration should be given to his/her release? Is this particularly so where repeated adverse decisions have been made against the prisoner? (Question 2)

(c) On the true construction of section 8(c) of the Ordinance, when determining whether the period of detention served by the prisoner is sufficient or insufficient ‘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’, the Board is exercising a sentencing function incompatible with [the Basic Law] and [the Hong Kong Bill of Rights Ordinance] (Cap 383), regardless as to whether or not such period is formally identified and disclosed to the prisoner? (Question 3)”

5.  The applicant further contended in the notice of motion that all the questions are of great general or public importance because:

(a) the answers to the questions will affect numerous prisoners who are either serving indeterminate sentences or long-term prison sentences and are subject to the Board’s reviews and decisions as to whether to make any recommendations under section 15 of the Ordinance;

(b) they will affect the future practice of the Board when conducting reviews and exercising its functions under the Ordinance;

(c) they relate to the duty of the Board to give proper reasons when exercising its functions under the Ordinance, especially for an adverse decision; and

(d) they involve wider considerations as to the role of the Board and whether it is exercising a sentencing function under section 8(c) of the Ordinance which are incompatible with the Basic Law and the Hong Kong Bill of Rights.

6.  We are prepared to accept and proceed on the basis that the questions raised are of great general or public importance.  However, for the reasons stated below, we will not give the applicant leave to appeal to the Court of Final Appeal.

Questions 1 and 2

7.  We do not propose to set out the submissions of Mr Derek Chan SC (together with Mr Benson Tsoi and Ms Lydia Leung), for the applicant, in respect of Questions 1 and 2 for the simple reason that they are in substance mere regurgitation of the submissions advanced before us at the appeal by Mr Fitzgerald QC, which were all rejected by us: see Parts D to F of our judgment.  Mr Chan has not satisfied us it is reasonably arguable that we have erred.

Question 3

8.  This is a question not raised before us, as the applicant rightly recognized that it is a matter for the Court of Final Appeal in light of its judgment in Lau Cheong & Another v HKSAR (2002) 5 HKCFAR 415 and the Appeal Committee’s determination in Tong Yu Lam v The Long-Term Prison Sentences Review Board & Another [2009] 4 HKC 133, at p.144.

9.  If the applicant so wishes, she should seek leave from the Court of Final Appeal to pursue this question.

Dispositions

10.  In consequence, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the notice of motion.

11.  We further order the applicant to pay the respondent’s costs of this application. We have considered the respondent’s statement of costs dated 5 August 2020 which claimed a total sum of HK$339,279.00.  We take the view that it is excessive and taking the matter in the round, we summarily assess the respondent’s costs at HK$250,000.00.