SECRETARY FOR JUSTICE v. AU KWOK LEUNG

HCMP2251/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.2251 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 Au Kwok Leung imposed by the High Court in HCCC295/1984.  

Background

2. On 5 March 1985, after his trial before de Basto J in the High Court sitting with a jury, the respondent was convicted of five counts of robbery and four counts of rape.  For each of the robbery counts he was sentenced to 13 years’ imprisonment to be served concurrently.  For each of the rape counts he was sentenced to life imprisonment.

3. The respondent applied for leave to appeal against his conviction and sentence.  His appeal application were dismissed by the Court of Appeal on 23 July 1985.  At the time of this application, the respondent has been in custody for 20 years.

4. 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.

5. 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.

6. 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.

7. 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.”

8. 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.

9. The object of the present exercise is therefore for this court to determine the minimum term which the respondent must serve for the four rape counts for which he was sentenced to life imprisonment in 1985.  

10. The background of this case is succinctly summed up by the trial judge to the jury.  He said :

“

It is the Crown’s case that within a period of under two months, the accused committed six robberies, all against women, and all committed between the hours of 5 and 6 am and that four of the victims of those robberies, after the robberies had been committed, were dragged or taken to a staircase and they were raped from behind.  You heard evidence from all six women that at a number of identification parades, all of them identified the accused.”

11. The modus operandi of the respondent invariably involved the respondent stalking the intended victims in the very early morning hours.  He would follow the victims into the lifts and declared robbery, and afterwards threatened them with weapons before raping them.

12. The respondent was born in February of 1952 and he has a string of convictions starting from 1964 when he was aged 12.  In 1978, he was sentenced concurrent sentences of eight years’ imprisonment for an offence of rape and four years for robbery.  He committed the present series of offences not long after he was released from prison. 

13. The trial judge made the following observations in passing sentence :

“	You have a bad criminal record including one robbery and rape on one victim and one separate robbery.  Your record includes other offences of violence.  I have not the slightest doubt that you are a vicious man and that you are a danger to society.”

14. Towards the end, the trial judge made a recommendation that the respondent should serve at least 20 years’ imprisonment.

15. Their Lordships’ judgment in the Court of Appeal in dismissing the respondent’s application to appeal against his sentence is not available to this court.

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 four 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 473 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. It could be distilled from the above passages 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.

The appropriate “minimum term”

24. The respondent is presently undergoing an intensive treatment programme designed for sexual offenders in the Siu Lam Psychiatric Centre.  The clinical psychologist Dr Judy Hui observed in her report dated 18 January 2005 that :

“

Previous assessment results often suggest him still having strong antisocial personality.  In [the] last two to three years, changes in his presented attitude towards psychological treatment were noticed.  He received intensive psychological treatment in [the] last 12 months and started to have some willingness to consider other opinions.  He started to develop some insights into the problems of his previous serious criminal behaviour and antisocial orientation.  There are signs indicating gradual change of his criminal way of thinking and his understanding of ways to prevent re-offending.”

25. However, despite these encouraging signs of development, on the issue of the respondent’s risk of re-offending Dr Hui reported that :

“	Results of actuarial risk assessment tool suggest his current risk level is high.”

The doctor concluded her report by observing :

“

Mr Au has a long criminal history which happened from early adolescence to his early thirties.  Many of his offences are very serious.  His development history, antisocial personality, intense anger, problematic sex interest and deep-rooted criminal way of thinking were often found to be major criminogenic factors related to his previous offending behaviour.  …  In recent years, he had certainly made effort to improve himself.  There are signs suggesting positive changes.  Most of the changes observed by the therapists happened in last twelve months when he started to receive intensive psychological treatment.  These positive changes would need consolidation in order to further reduce his risk of reoffending.”

26. In the report by Dr C.H. Yuen dated 8 January 2005, the visiting consultant psychiatrist to the Siu Lam Psychiatric Centre, the doctor adopted a much more cautious approach to the problems of the respondent.  He said towards the end of his report :

“	This inmate has long-standing psychopathic disorder.  Among other things, people with this disorder are basically unsocialized and their behavioural pattern brings them repeatedly into conflict with the society.  They are incapable of significant loyalty to individuals, groups or social values.  They are grossly selfish, callous, irresponsible and unable to feel guilt or to learn from experience and punishment.  They tend to blame others or offer plausible rationalizations for their behaviour.  Prognosis, in terms of recidivism and violence, is poor.
	He appears to have improved in the past 1 year but I am not sure whether the improvement is real or just superficial.”

27. No doubt the Long Term Prison Sentences Review Board will address these issues fully when the respondent appears before members of the Board in the future.

28. In the report prepared by the Correctional Services Department dated 19 December 2003 at which time the respondent was still serving in the Shek Pik Prison, the overall performance of the respondent was given a grade of B+.  It is noted that during his incarceration he had taken up extra-mural courses in relation to “Buddhist Studies”.  In 1994 he had obtained a satisfactory result in the Hong Kong Certificate of Education Examination in that subject. 

29. 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.

30. The Court of Appeal in Cheung Lai Man furtherobserved that the original minimum term of 20 years’ imprisonment was excessive.  If one is to work backwards, and give appropriate discounts for the appellant’s guilty plea and the remission he would have been given under the Prisons Ordinance, Cap. 234, the original sentence was equivalent to an effective starting point of up to 45 years’ imprisonment.

31. If the respondent is sentenced today for the rape offences he would have attracted a term of 12 years for each count of rape.  The respondent was convicted after trial so there would have been no discount at all from the starting point of 12 years’ imprisonment.  The total prison term for the rape counts, if served consecutively, would have meant a sentence of 48 years’ imprisonment.  Bearing in mind the totality principle a global sentence of between 30 to 35 years would not have been inappropriate.  Taking the lower figure of 30 years, a prisoner is entitled to a remission of up to 1/3 of the total actual prison term for his industry and good conduct pursuant to rule 69(1) of the Prison Rules of the Prisons Ordinance, Cap.234.  Given the 1/3 remission the nett term should be served by the respondent would have been a term of 20 years’ imprisonment.

32. For the reasons stated, I determine the minimum prison term the respondent must serve for the rape offences to be 20 years.