NG KING TAT PHILIP v. POST-RELEASE SUPERVISION BOARD

HCAL 47/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 47 OF 2010

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J U D G M E N T

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Hon Lam J:

1.  For the reasons given by Andrew Cheung J, I agree that the application should be dismissed.

Hon Andrew Cheung J:

1   Introduction

2.  This application for judicial review raises questions about the power of the Post-Release Supervision Board (“the Board”) to make a supervision order against a transferred prisoner, that is to say, a person who is sentenced in a place outside Hong Kong and has been transferred to Hong Kong in order to serve the sentence imposed on him or any part thereof; and the conditions that may be imposed by way of supervision.

3.  The applicant is a permanent resident of Hong Kong.  In 1998, he was convicted on his own plea on a charge of “attempted importation of methamphetamine in the United States Territory of Guam”.  He was sentenced by the United States District Court for the District of Guam to 168 months’ (14 years’) imprisonment.

4.  On 17 April 1999, the Agreement for the Transfer of Sentenced Persons between the Government of Hong Kong and the Government of the United States of America came into force.  It provides for the transfer of sentenced persons between Hong Kong and the United States.  Article 8 of the Agreement provides, amongst other things, that the receiving party shall enforce the sentence as if the sentence had been imposed in the receiving party; and that the continued enforcement of the sentence after transfer shall be governed by the laws and procedures of the receiving party, including those providing for the reduction of the term of imprisonment by parole, conditional release, remission or otherwise.

5.  In about 2005, the applicant applied for transfer to Hong Kong pursuant to the Agreement with the view to serving the remainder of his sentence in Hong Kong.  The Security Bureau received the relevant letter of application from the US Department of Justice on 31 July 2006, and after processing, the Secretary for Security issued an Inward Warrant with respect to the transfer of the applicant on 31 July 2007.  The Inward Warrant, issued under section 3 of the Transfer of Sentenced Persons Ordinance (Cap 513), provided for the bringing in of the applicant into Hong Kong, the taking of the applicant into the penal institution stipulated therein, and the detention of the applicant until the stipulated day of release.  In the course of processing the application, the applicant was supplied with a “Statement indicating the basis that the transfer may take place” (“the Annex B Statement”), which he was asked to read and sign.  The Annex B Statement provided:

“[3]C.    Post-Release Supervision in the HKSAR

  In accordance with the Post-Release Supervision of Prisoners Ordinance (Chapter 475, Laws of the HKSAR), a prisoner serving a sentence of 6 years or more or sentenced to 2 years or more for specific types of offences, such as triad related offences, sexual offences or crimes of violence will be considered by the Post-Release Supervision Board for post-release supervision.  The period of supervision will not be longer than the remitted part of his sentence permitted under the Prison Rules.  The scheme aims at assisting prisoners concerned to reintegrate into society.

4.  Sentence Remaining to be Served in the HKSAR

…

… As your sentence falls into the sentences specified in the Post-release Supervision of Prisoners Ordinance, the Post-release Supervision Board will consider your case and you may be subject to a period of supervision following your release.  This period will not be longer than the remitted part of your sentence.”

6.  Originally, it was thought that the earliest and latest dates of discharge of the applicant were respectively 27 November 2009 and 10 November 2010.  However, after clarification with the US authorities regarding the applicant’s “jail time credit” and “good conduct time”, the earliest and latest dates of discharge were revised to 7 October 2009 and 12 October 2010.  In short, the earliest date of discharge took into account the benefit of remission which the applicant would earn pursuant to rule 69 of the Prison Rules (Cap 234A) for industry and good conduct.

7.  The applicant was indeed released from prison on 7 October 2009.  However, on 10 September 2009, prior to his release from prison, the Board made a supervision order in respect of the applicant pursuant to the Post-Release Supervision of Prisoners Ordinance (Cap 475) (“the Ordinance”).  By paragraph (c) of the supervision order, the applicant was ordered to comply with the following conditions for 12 months from his release:

“(1)    You shall place yourself under the supervision of a supervising officer nominated for this purpose and any other officer replacing him from time to time.

(2) You shall meet with your supervising officer in accordance with that officer’s instructions.

(3) You shall inform your supervising officer at once of any changes in your home and office address or any employment particulars including dismissals.

(4) You shall be of good behaviour and keep the peace.

(5) You shall inform your supervising officer of the intention to leave Hong Kong for a specified period or of the intention to take up residence abroad.

(6) You shall reside at an address approved by your supervising officer.

(7) You shall undertake only such employment as approved by your supervising officer.

(8) You must meet with your supervising officer at least once a month.

(9) You shall not, without reasonable excuse, fail to engage yourself in gainful employment in accordance with the instructions of your supervising officer.

(10)   You shall not commit any offence against the Laws of Hong Kong.”

8.  The supervision order was made by the Board after considering the representation of the applicant who opposed the making of the order.  After his release, the applicant continued to object to the supervision order.  By a letter dated 22 December 2009, the applicant through solicitors asked the Board to review the supervision order and to discharge the same, pursuant to the Board’s powers under sections 7(4) and 11(1) of the Ordinance, on the ground that the Ordinance does not apply to transferred prisoners and therefore the Board had no power to make the supervision order in respect of him.

9.  By a letter dated 15 January 2010, the Board replied that it considered it was empowered to make the supervision order and the applicant’s requests were refused.

10.  The applicant’s application for legal aid took time and, eventually, on 30 April 2010, he took out an application for leave to apply for judicial review to challenge the Board’s supervision order and refusal to discharge the order.  The Court extended the time for the making of the application and granted leave to mount the judicial review.  The Court did not accede to an application for interim relief but ordered an expedited hearing of the substantive application instead.

2   Applicant’s arguments

11.  The applicant essentially takes three points.

12.  First, the applicant argues that the Board has no power under the Ordinance to make a supervision order in respect of a transferred prisoner.  He contends that the Ordinance does not apply to a transferred prisoner.  Unlike the Prisons Ordinance (Cap 234) (see the definition of the word “prisoner” in section 2), the Prisoners (Release under Supervision) Ordinance (Cap 325) (see the express provisions regarding a transferred prisoner in section 7) and the Long-term Prison Sentences Review Ordinance (Cap 524) (see sections 2(d) and 3 thereof), the Ordinance contains no express provisions to cover the position of a transferred prisoner.

13.  The applicant argues that as a matter of statutory construction, since the Ordinance is penal in nature, any ambiguity about the scope of application of the Ordinance should be resolved in favour of a transferred prisoner like himself.

14.  Secondly, the applicant argues that he was misled by the documents provided to him for his information into consenting to the transfer.  He contends that he understood from paragraph 3C of the Annex B Statement that the provisions under Hong Kong law for post-release supervision would not apply to him because on return to Hong Kong the balance of his sentence to be served would be less than 6 years.

15.  The applicant argues that the Board must have failed to take this into account in deciding whether to make a supervision order; alternatively, the Board has made a supervision order which is unreasonable in the Wednesbury sense; and in either event, the supervision order should be quashed.

16.  Thirdly, the applicant argues that conditions (3), (5), (6), (7) and (9) in paragraph (c) of the supervision order infringe his right to emigrate and to leave Hong Kong guaranteed by article 31 of the Basic Law and article 8(2) of the Hong Kong Bill of Rights, his freedom to choose his place of residence guaranteed by article 12(1) of the International Covenant on Civil and Political Rights (ICCPR) and article 8(1) of the Hong Kong Bill of Rights, his freedom of choice of occupation guaranteed by article 33 of the Basic Law, and his right to privacy guaranteed by article 14(1) of the Hong Kong Bill of Rights.

3   The Ordinance

17.  It is helpful to first look at the Ordinance.

18.  The Ordinance was enacted in 1995 (as Ordinance No 36 of 1995), and came into force on 30 November 1996.  According to its preamble, it is an Ordinance to provide for the release under supervision of certain categories of prisoners, on the order of a board established for the purpose.

19.  Section 2 of the Ordinance defines the word “prisoner” to include a person who has been released from imprisonment subject to supervision under the Ordinance.  There is no other definition for the word.

20.  Section 3(1) provides that the Ordinance applies to every prisoner who was 21 or over at the time of being sentenced to imprisonment, or has since attained the age of 25 and is serving a sentence of a kind specified in the Post-Release Supervision of Prisoners Regulation (Cap 475A).  The specified sentences comprise a sentence of imprisonment of 6 years or more; and a sentence of imprisonment of 2 years or more but less than 6 years in respect of various specified common law and statutory offences, as well as accessory offences in relation to them: regulation 2 of Cap 475A.  The application of the Ordinance is subject to several exceptions set out in section 3(1)(c) to (e) and (2).  Amongst other things, it does not apply if the prisoner is already subject to supervision by virtue of an order made under section 7(1) of Cap 325, or to a prisoner who was sentenced or detained under an indeterminate sentence within the meaning of Cap 524 and whose sentence is subsequently converted by the Chief Executive to a determinate sentence.

21.  Section 5 of the Ordinance sets out the functions of the Board:

“(1)   The functions of the Board shall be –

(a) to consider whether any prisoner to whom this Ordinance applies should be granted early release under supervision, and if so, to order his release in accordance with this Ordinance; and

(b) to consider applications for the variation, suspension or discharge of supervision orders in accordance with this Ordinance.

(2) In the discharge of its functions under this Ordinance the Board shall have regard to –

(a) the desirability of securing prisoners' rehabilitation and their re-integration into society; and

(b) the need to protect the public from serious harm from offenders.”

22.  Under section 6 of the Ordinance, the Board may order early release of a prisoner on the ground of his industry and good conduct, subject to supervision under the Ordinance.  A supervision order may provide for the release under supervision of a prisoner at any time after he has served not less than two-thirds of the total of the actual term of his sentence.

23.  In this regard, the grant of remission of sentence under rule 69 of the Prison Rules (Cap 234A) need be borne in mind.  Rule 69 provides that a prisoner serving a sentence of imprisonment for an actual term of more than one month may, on the ground of his industry and good conduct, be granted remission.  The remission granted under rule 69 shall not exceed one-third of the total of the actual term of imprisonment.  However, no remission shall be granted in respect of a prisoner to whom the Ordinance applies: rule 69(4B).  In other words, if a supervision order is made in respect of a prisoner under the Ordinance, no remission would be granted under rule 69, but the prisoner would be given an early release subject to supervision under the Ordinance.  However, if no supervision order is made under the Ordinance, remission may be granted under rule 69.

24.  Section 7(1) of the Ordinance provides, amongst other things, that a supervision order shall specify the conditions as to supervision “which the Board considers to be necessary or desirable in the case of the prisoner having regard to the considerations specified in section 5(2)(a) and (b)”, that is to say, the desirability of securing a prisoner’s rehabilitation and his re-integration into society; and the need to protect the public from serious harm from offenders.

25.  Section 9 the Ordinance provides that a prisoner who is released from imprisonment subject to a supervision order shall, until the expiration of the order, be subject to supervision by a supervising officer and comply with the supervision order.  Section 10 goes on to stipulate that upon the expiration or discharge of a prisoner’s supervision order, any unserved balance of his sentence shall be deemed to be remitted.

26.  Section 13(1)(a) provides that where the Board is satisfied as regards a person who is subject to a supervision order that the person has “without lawful authority or reasonable excuse failed to comply with any term or condition of the order”, it may order that the supervision order be suspended for a specified period not exceeding the unexpired term of the Order.  In that event, the Commissioner of Correctional Services shall recall the person to prison and re-imprison him for the period of the suspension: section 13(2).

27.  There are elaborate provisions governing the procedure for suspending a supervision order and recalling the person involved to prison and re-imprisoning him, as well as the making of temporary recall orders and summary recalls.

4   Rule 69 of the Prison Rules – remission without supervision

28.  The Ordinance is not the only piece of legislation in Hong Kong to deal with early release of prisoners (subject to supervision).  As mentioned, rule 69 of the Prison Rules provides for the early release of prisoners by way of remission.  However, it does not involve any post-release supervision.  On the other hand, as described, if a supervision order is made under the Ordinance, no remission would be granted under rule 69.

5   Cap 325 – voluntary supervision

29.  The Prisoners (Release under Supervision) Ordinance (Cap 325) is indeed an earlier piece of legislation to the Ordinance dealing with the release of prisoners under supervision.  It was enacted in 1987 (as Ordinance No 59 of 1987) and came into effect on 1 July 1988.  The word “prisoner” is again defined as including a person who has been released from imprisonment under Cap 325.

30.  Cap 325 provides for the release under supervision of certain categories of prisoners.  A main difference between a supervision order made under Cap 325 and one made under the Ordinance is that under the former, supervision is voluntary.  A supervision order under Cap 325 is only made upon an application by the prisoner to the Chief Executive through the Supervision Board established under Cap 325 for an order for his release under Cap 325 under supervision.

31.  Importantly for our purposes, section 7(2A), (2B) and (5), which were added by an amendment to Cap 325 in 1995, contain provisions on counting the length of the sentence of imprisonment being served by the prisoner concerned, “where the prisoner is a transferred prisoner”, for the purposes of determining whether he is eligible to apply for release under supervision under Cap 325.

6   Cap 524 – indeterminate and long-term prisoners

32.  The Long-term Prison Sentences Review Ordinance (Cap 524) is an Ordinance enacted in 1997 (as Ordinance No 86 of 1997).  It came into force on 30 June 1997.  It establishes a board to review indeterminate and long-term prison sentences and the detention of persons detained at Executive discretion and certain other kinds of prison sentences.  It defines the word “prisoner” to include a person who is released under a conditional release order or a supervision order (section 4(1)).

33.  One of the specific purposes of the Ordinance is (section 2(d)):

“to provide for the review of sentences of prisoners who, having been convicted of offences outside Hong Kong and sentenced to indeterminate or long-term sentences for those offences, are serving all or part of those sentences at prisons in Hong Kong.”

34.  Section 3 of Cap 524 specifically provides that the Ordinance applies to and in relation to all long-term prisoners, prisoners serving indeterminate sentences, juvenile prisoners and “transferred prisoners”.

35.  Parts IV and V of Cap 524 go on to provide for the conditional release of a prisoner and the circumstances in which a supervision order may be made.

7   Cap 513 – transfer of sentenced persons to and from Hong Kong

36.  As regards the transfer between Hong Kong and places outside Hong Kong of persons detained in institutions by virtue of orders made by courts in the exercise of their criminal jurisdiction, domestically the matter is governed by the Transfer of Sentenced Persons Ordinance (Cap 513), which was enacted in 1997 (as Ordinance No 51 of 1997) and came into effect on 6 June 1997.  By itself, it should be remembered, an international treaty governing the transfer of prisoners has no domestic force.

37.  Section 3 of that Ordinance provides that the Chief Executive may, pursuant to any arrangements for the transfer of sentenced persons, issue an Inward Warrant providing for the transfer of a sentenced person into Hong Kong from the place outside Hong Kong to which those arrangements are applicable.

38.  Section 4(1) sets out the restrictions on the issue of an Inward Warrant.  Amongst other things, the acts or omissions constituting the conduct in respect of which the sentence was imposed must amount to conduct which, if the conduct had occurred in Hong Kong, would constitute a criminal offence under the law of Hong Kong.  Furthermore, the sentenced person must be a holder of a Hong Kong permanent identity card or is a person who, in the opinion of the Chief Executive, otherwise has close ties with Hong Kong.  Moreover, the sentence imposed must be for life; an indeterminate period; or a fixed period.

39.  Section 5(1) of Cap 513 provides that an Inward Warrant shall be sufficient authority for the bringing of the sentenced person into Hong Kong from the place outside Hong Kong; the taking of the sentenced person to the institution in Hong Kong which is specified in the Warrant; and the detention of the sentenced person in accordance with the terms of the Warrant.  It is of significance to note that Cap 513, which was enacted subsequent to the making of rule 69 of the Prison Rules, and the enactment of Cap 325 and the Ordinance, only made consequential amendments (via section 11 of and Schedule 2 to Cap 513) to the Prisons Ordinance (Cap 234) and to Cap 325, but not to the Ordinance, relating to the position of transferred prisoners.

40.  Thus in relation to the Prisons Ordinance, a definition of the word “prisoner” has been added to section 2 and it defines the word as including a person who is sentenced in a place outside Hong Kong and is brought into Hong Kong in order to serve the sentence imposed upon him (or any part thereof) in that place.  Given that definition and the absence of any other relevant definitions or provisions in the Prison Rules, there can be no doubt that the provisions relating to remission set out in rule 69 of the Prison Rules apply equally to a transferred prisoner.

41.  As described, Cap 325 was amended in 1995 in that section 7 of that Ordinance, concerning the categories of prisoners who may apply for release under a supervision order, depending on their length of sentence, to include express provisions to deal with how the length of sentence of a transferred prisoner should be counted for the relevant purposes.  It was further amended by Cap 513 by way of consequential amendments to bring the relevant provisions in line with Cap 513.

42.  However, no relevant consequential amendments were made by Cap 513 to the Ordinance on that occasion.

43.  As mentioned, Cap 524, dealing with long-term prison sentences review, also has express provisions dealing with the position of transferred prisoners.  However, it should be noted that Cap 524 was actually enacted after Cap 513, and therefore one cannot find any consequential amendments made by Cap 513 to Cap 524.  Nonetheless, like the amended Cap 325 and Prisons Ordinance, the position of transferred prisoners is specifically catered for in Cap 524.

8   History of transferred prisoners detained in Hong Kong

44.  Although the Ordinance , which was enacted prior to Cap 513, does not, in the circumstances described, contain any express or specific provisions to deal with the position of transferred prisoners, it does not mean that prior to or at the time the Ordinance was enacted, Hong Kong did not have transferred prisoners.  Indeed, the legal basis for transferred prisoners in Hong Kong may be traced to the Repatriation of Prisoners Act 1984.  As has been explained by the Court of Final Appeal in Re Yung Kwan Lee (1999) 2 HKCFAR 245, 248, there were two relevant United Kingdom Orders-in-Council made under the 1984 Act.  They were the Repatriation of Prisoners (Overseas Territory) Order 1986 and the Repatriation of Prisoners (Overseas Territory) Amendment Order 1987.  The 1986 Order extended the 1984 Act, with certain adaptations, to a list of British overseas territories, whereas the 1987 Order added Hong Kong to that list.  The Governor was empowered to issue warrants under the 1986 Order (as amended) for the transfer of prisoners to and from Hong Kong and for the detention here of prisoners transferred to Hong Kong.

45.  As the case also demonstrated, prior to the enactment of the Ordinance, there were already bilateral international treaties covering the transfer of prisoners to and from Hong Kong and for their detention here, such as the Anglo-Thai Treaty signed on 22 January 1990, which was dealt with by the Court of Final Appeal in that case.

46.  In other words, at the time the Ordinance was enacted, the transfer of overseas prisoners back to Hong Kong to serve their sentences here had already been happening.  The Ordinance, when first enacted, did not have any provisions to deal specifically with transferred prisoners.  The consequential amendments made by Cap 513 when it was enacted in 1997 did not cover the Ordinance.  This, therefore, sets the scene for the first issue raised by the applicant in this application of judicial review, namely, whether the Ordinance applies to transferred prisoners or not.

9   1^st issue: Does the Ordinance apply to transferred prisoners?

9.1   Applicant’s arguments

47.  This is essentially a question of construction of the Ordinance.  In essence, Mr S H Kwok, appearing for the applicant, argues that there are no express provisions in the Ordinance to say that it covers a transferred prisoner, that is to say, that a supervision order may be made under the Ordinance in relation to a transferred prisoner.  Absent such a supervision order, a transferred prisoner’s position falls to be governed by the provisions in rule 69 of the Prison Rules.  He may be granted remission on the ground of his industry and good conduct, and such remission (under rule 69) is not subject to any post-release supervision.

48.  Mr Kwok argues that unlike the Prisons Ordinance (as amended by Cap 513), there is no expanded definition of the word “prisoner” to specifically cover a transferred prisoner.  Likewise, unlike Cap 325, there are no specific provisions to govern the position of a transferred prisoner when it comes to determine whether they qualify for the making of a supervision order under that Ordinance.

49.  Mr Kwok likewise argues that unlike Cap 524 (concerning long-term prison sentences and the making of relevant conditional release and supervision orders), which was enacted subsequent to the Ordinance, there are no specific provisions in the Ordinance to deal with transferred prisoners.

50.  Mr Kwok argues that a supervision order made under the Ordinance is penal in nature, and any ambiguity in relation to its scope of application should be resolved in favour of a transferred prisoner.  Counsel relies on Bennion on Statutory Interpretation (5^th ed), sections 271 and 273.

51.  Mr Kwok also contends, by reference to the conditions typically imposed under a supervision order, that the order seeks to restrict the released person’s fundamental rights and freedoms under the Basic Law and the Hong Kong Bill of Rights.  Such rights, counsel argues, cannot be overridden by general or ambiguous words.  In the absence of express language or necessary implication to the contrary, counsel contends, the court would rather presume that even the most general words were intended to be subject to the basic rights of the individual.  R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, 131.

9.2   Matter of statutory construction

52.  The question raised is essentially one of statutory construction.  As has been pointed out by the Court of Final Appeal on repeated occasions, the modern approach in interpreting a statute is to adopt a purposive interpretation.  The Court’s task is to ascertain the intention of the Legislature as expressed in the language of the statute.  The statutory language is construed, having regard to its context and purpose.  Words are given their natural and ordinary meaning unless the context or purpose points to a different meaning.  Importantly, context and purpose are considered when interpreting the words used and not when an ambiguity may be thought to arise.  Context and purpose must be considered in the first instance, especially in the case of general words, and not merely at some subsequent stage when ambiguity may be thought to arise.  Indeed, the mischief rule is an example of the purposive approach, which is reflected in Hong Kong in section 19 of the Interpretation and General Clauses Ordinance (Cap 1).  The context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law.  The purpose of a statutory provision may be evidenced from the provision itself.  Where relevant, materials such as a law reform commission report, the explanatory memorandum to the bill, and a statement made by the responsible official of the Government in relation to the bill in the Legislative Council may be referred to and used in order to identify the purpose of the legislation.  HKSAR v Cheung Kwun Yin [2009] 6 HKC 22, paras 11 to 14; HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, para 63; HKSAR v Ho Yau Yin [2010] 4 HKC 160, para 14.

9.3   General context

53.  It is therefore necessary to adopt a purposive interpretation of the Ordinance to determine whether it applies to transferred prisoners.  In this regard, one must examine the relevant context and purpose.  I have, in the above discussion, explained in some detail the various legislative schemes governing early release of prisoners and release under supervision.  I have also dealt with the statutory regime for the transfer of prisoners to and from Hong Kong and the detention here of prisoners transferred to Hong Kong.  They form the relevant context of the Ordinance in general.

9.4   Purpose of the Ordinance

54.  It is necessary to look at the purpose of the Ordinance and the provisions contained therein in slightly greater detail.

55.  As mentioned, section 5 of the Ordinance sets out the functions of the Board.  It is plain from section 5(2), already extracted above, that two matters are of particular significance in deciding whether a supervision order should be granted.  First, the desirability of securing the prisoner’s rehabilitation and his re-integration into society.  Secondly, the need to protect the public from serious harm from offenders.

56.  Indeed, according to the Legislative Brief of the Bill, those two matters are the objectives of the post-release supervision scheme designed under the Ordinance.  Paragraph 6 of the Brief specifically states:

“6. Under the proposed scheme, certain categories of adult prisoners may be placed under supervision after their release.  The objectives are to protect the public from discharged prisoners considered still to represent a potential threat to public safety, and to help prisoners reintegrate into society and thereby to prevent recidivism.”

57.  According to another Legislative Council Brief in relation to the Post-Release Supervision of Prisoners Regulation made under the Ordinance,

“3. The Post-Release Supervision of Prisoners Ordinance (Chapter 475) … was enacted on 31 May 1995 to establish a Post-Release Supervision scheme to place certain categories of prisoners under supervision after their early release.  The objective is to provide discharged prisoners with guidance and assistance to help them return to society and lead a normal, useful life, thus minimizing recidivism.  There is a need for this scheme because many prisoners, after serving long periods in prisons and with limited preparation for what to expect after their release, often do not know how best to reintegrate into society in a law abiding manner.

…

6. Under the current penal system, prisoners may have up to one-third of their sentences remitted, subject to good conduct and industry.  The Board will consider the cases of prisoners within the target group before their earliest date of discharge.  If early release under supervision is granted under the scheme, the prisoner will be released on the date when his sentence would otherwise have been remitted.  The supervision order will cover a period no longer than the remitted portion of the sentence.  Hence, the period of supervision is not an extension of the prisoner’s sentence because the original sentence imposed by the court will not be increased.  The granting of early release under supervision may be viewed as an alternative method of completing the punishment set by the court.”

58.  In Lui Tat Hang Louis v The Post-Release Supervision Board [2010] 1 HKC 297, 315, Stock J (as he then was) described the post-release supervision scheme under the Ordinance in these terms:

“35.   The scheme to which the Ordinance gives effect is essentially rehabilitative.  I believe that to be so even though there are controls and limitations on the lifestyle and habits of the released prisoner, and even though there is a right to recall.  In my judgment, those limitations and controls, and the power of recall for breach of a supervision order, are adjuncts to rehabilitation.  They are there as tools by which to render the scheme, rehabilitative in intent, effective.  It is to be remembered that those who fall under the scheme’s umbrella are those who have been imprisoned for more than six years, or who have committed specified offences and have been sentenced to terms of imprisonment for between two to six years.  The nature of the specified offences are in many instances of a kind which, for a variety of reasons, carry a particular recidivist risk – triad offences or offences which tend to be triad related where, in the absence of fruitful support, the danger of falling back into bad company upon release may be real; or sexual offences where a particular offender might have a disposition to an offence of that kind.  The scheme is and, as the various papers make clear, is intended to be, rehabilitation oriented, to assist discharged prisoners to re-integrate into society and to discourage them from re-offending.  What is intended is that assistance be given to the prisoners to secure employment or to enroll in training courses and to find accommodation.  Upon discharge, apart from periodic acts of supervision, welfare requests are received and, where appropriate, referrals are made; for example, referral to psychological services.”

59.  Putting aside the question of whether the Ordinance applies to transferred prisoners for the time being, given the categories of prisoners covered by the Ordinance in terms of their lengths of imprisonment or the types of offence committed, it is not difficult to understand the purpose of the Ordinance and the objective of the post-release supervision of prisoners scheme.  Many of the prisoners covered by the Ordinance would be long-term prisoners who have been, by definition, separated from society for a long period of time.  They are likely to encounter adjustment difficulties upon discharge.  According to the evidence, the scheme would provide counselling, advice and available services as well as support which are necessary to help them re-integrate into society, to discourage them from re-offending and to help them lead a law abiding life after discharge.

60.  Furthermore, understandably, some of the targeted prisoners are hard-core criminals and recidivists, and they still represent a potential threat to public safety after discharge.  There must be reasonable protection for the public, which may be achieved through supervision under the Ordinance.

61.  Indeed, they are the two matters specifically singled out for consideration under section 5(2) of the Ordinance.

9.5   Purpose of the arrangement for the transfer of sentenced persons

62.  This being the purpose and objective of the Ordinance, the next logical question to ask is whether the intention of the Legislature as expressed in the language of the Ordinance is to cover transferred prisoners who otherwise fall within the targeted categories.

63.  In this regard, one must inquire into the purpose or objective of the regime for the transfer of prisoners and for the detention here of prisoners transferred to Hong Kong.

64.  In this regard, the purpose or objective behind the transfer arrangements have been succinctly put by the Court of Final Appeal in Re Yung Kwan Lee, at p 252D:

“For humanitarian reasons Hong Kong had an interest in enabling Hong Kong permanent residents imprisoned abroad to return here to serve their sentences in our own prisons rather than in foreign prisons.”

65.  This has been elaborated in the standard information about the transfer arrangements provided by the Security Bureau of the Government to those who are interested in applying for a transfer.  Paragraph 1 of the information puts the purpose of the transfer arrangements in these terms:

“The above transfers are based on the humanitarian belief that the elimination of difficulties which may arise through language barriers, alienation from local culture and customs and non-contact with relatives, would facilitate the sentenced persons re-integration into society.”

66.  Indeed the Hong Kong-US Agreement in question, for instance, also refers to facilitating prisoners’ successful re-integration into society of which they are citizens, nationals or permanent residents, as the rationale for the transfer of sentenced persons.

9.6   Harmony of purpose

67.  Given the respective purposes or objectives of the post-release supervision of prisoners scheme under the Ordinance and the arrangements for the transfer of sentenced persons under Cap 513, not only is there no conflict or inconsistency between the scheme and the arrangements, but also the purpose or objectives of the arrangements for the transfer of sentenced persons is in full harmony with and is indeed enhanced by the post-release supervision scheme under the Ordinance, which aims at, amongst other things, helping the released prisoner to re-integrate into society.

68.  In terms of purpose or objective, one can immediately see that a transferred prisoner, who is, by definition, a Hong Kong permanent resident or somebody otherwise having close ties with Hong Kong, stands in no different position from a local prisoner.  In terms of rehabilitation and re-integration, their needs are essentially the same.

69.  In terms of the need to protect the public from harm from offenders, again there is no distinction between the two types of prisoner.

70.  Mr Kwok argues that unlike a local prisoner, a transferred prisoner has not committed any crime in Hong Kong, and he is only detained here on the authority of an Inward Warrant issued under Cap 513.

71.  With respect, this is an immaterial distinction in the present context.  In the present context, that is to say, in terms of rehabilitation, re-integration and reasonable protection against re-offending, there is no material distinction between a transferred prisoner and a local prisoner.  As mentioned, the purpose or objective of the arrangements for the transfer of prisoners is in perfect harmony with that of the post-release supervision scheme under the Ordinance.

9.7   Context and relevance of other legislation

72.  As regards the relevant context, I have already described the existing state of the law when the Ordinance was enacted, and the subsequent amendments made to the Prisons Ordinance and Cap 325, following the enactment of Cap 513 in 1997, as well as the subsequent enactment of Cap 524 on 30 June 1997.

73.  However, it is important to bear in mind that when the Ordinance was enacted in 1995, the arrangements for the transfer of prisoners and the detention here of prisoners transferred to Hong Kong had already been in place for almost a decade on the basis of the relevant Orders-in-Council.  It is true that the Legislative Briefs relating to the Ordinance did not specifically mention the position of transferred prisoners.  However, given that, as analysed above, there is simply no material distinction between the position of a transferred prisoner and a local prisoner in terms of rehabilitation, re-integration and protection against re-offending, the absence of any special mentioning is not surprising at all.  Indeed, one would think otherwise and assume that if the Administration had intended to exclude transferred prisoners from the intended scope of operation of the post-release supervision scheme, it would have said so in the relevant Legislative Bills, bearing in mind that both the Administration and the Legislature were well aware that detained in our penal institutions were not only local prisoners, but also transferred prisoners.

74.  One may legitimately debate whether the true interpretation of the Ordinance in relation to its scope of application, which was enacted in 1995, could be dependent upon whether and what consequential amendments were made to other legislation in 1997 following the enactment of Cap 513, or whether the proper interpretation could be affected by the enactment of Cap 524 on the last day before the resumption of the exercise of sovereignty.  The point made by Mr Kwok is all the more debatable when one bears in mind that Cap 513 did not introduce into Hong Kong for the first time the arrangements for the transfer of prisoners and the detention here of prisoners transferred to Hong Kong.  It simply replaced the pre-existing legal basis for the transfer and detention arrangements, which had been in place before the Ordinance was enacted: para 10 of the Legislative Council Bill on the Cap 513 Bill.

75.  Bennion, at pp 708 to 710, deals with the use of later Acts in pari materia to aid the interpretation of an earlier Act.  The principle underlying the treatment of Acts which are in pari materia is based on the idea that there is continuity of legislative approach in such Acts, and common terminology.  On the facts of the present case, what is plain from the subsequent enactment history is that the Legislative Council did intend the various post-release supervision schemes as well as the regime of remission to apply to transferred prisoners.  The question therefore becomes whether the Legislative Council, in the light of the subsequent legislative history, did intend to create an exception in the case of the Ordinance, and if that really was the case, what the Legislature’s purpose or justification for such an exception was.  Approaching the matter from that perspective, it is quite plain that there is no discernible reason, purpose or justification for the Legislature not intending to apply the Ordinance to transferred prisoners, when the Prison Rules, Cap 325 and Cap 524 are all applicable to transferred prisoners.  In other words, to the extent that the subsequent enactment history is relevant and is of assistance, it actually points against the contention of the applicant; rather it suggests that the absence of any similar consequential amendments to the Ordinance was due to an accidental omission on the part of the Legislature/Administration in its rush to pass the relevant legislation before the resumption of the exercise of sovereignty on 1 July 1997.

76.  As for section 7(2A), (2B) and (5) of Cap 325, they were added by section 57 of the Administration of Justice (Miscellaneous Provisions) (No 2) Ordinance (Ordinance No 68 of 1995), which was enacted on 24 July 1995.  The relevant Bill was first read in the Legislative Council on 10 May 1995.  By then, the Bill for the Ordinance (“the Cap 475 Bill”) had already been drafted and tabled at the Legislative Council (its first reading took place on 19 January 1993).  The Ordinance was enacted on 31 May 1995.  In other words, it would appear that the Cap 475 Bill, which eventually was enacted as the Ordinance, was modelled on the unamended Cap 325, and when Cap 325 was amended in 1995, the Cap 475 Bill had already become law, and no amendment had been made to that Bill to bring it in line with the proposed amendments to Cap 325.

9.8   Plain meaning of the text

77.  Whilst purpose and context are of great significance in the proper interpretation of a statute, it does not mean that one can distort or even ignore the plain meaning of the text and construe the statute in whatever manner that achieves a result which is considered desirable.  As Lord Millett NPJ has reminded the courts in China Field Ltd v Appeal Tribunal (Buildings) (No 2) [2009] 5 HKLRD 662, para 36, purposive construction means only that statutory provisions are to be interpreted to give effect to the intention of the Legislature, and that intention must be ascertained by proper application of the interpretative process.  This does not permit a court to attribute to a statutory provision a meaning which the language of the statute, understood in the light of its context and the statutory purpose, is incapable of bearing.

78.  In other words, even though I have come to the view that in terms of the purpose or objective of the Ordinance (as well as that of the arrangements for the transfer of prisoners and their detention in Hong Kong), there is no material distinction between transferred prisoners and local prisoners in similar situations, and although I have also reached the conclusion that in terms of the context of the Ordinance and the relevant provisions, there is really nothing to indicate that the Ordinance is not to apply to transferred prisoners, one must still look at the provisions and the words used to arrive at their proper construction.

79.  Here, an important word used is the word “prisoner”, which is only given a partial definition in section 2 of the Ordinance.  The crucial question is whether one would be distorting or even ignoring the meaning of the word if one were to construe the Ordinance as applying also to transferred prisoners.  In this regard, one must look at the ordinary and natural meaning of the word.  The literal or dictionary meaning of “prisoner” is a person who is being kept in prison as the result of some legal process: Shorter Oxford English Dictionary (6^th ed), p 2351.  Certainly, a transferred prisoner is detained in a penal institution as the result of some legal process, namely, the issue of an Inward Warrant pursuant to the provisions in Cap 513.

80.  In my view, construing the word “prisoner” to include a transferred prisoner would not do any unjustified violence to the ordinary and natural meaning of the word.

81.  As mentioned, the Ordinance only applies to a prisoner who is serving a sentence of a kind specified in the Post-Release Supervision of Prisoners Regulation.  This means a sentence of imprisonment of 6 years or more, or that of 2 years or more but less than 6 years in respect of a conviction for any of the offences specified in Schedule 1.  The specified offences are statutory offences under 7 different Ordinances in Hong Kong, together with the common law offences of murder and manslaughter.  It should also be remembered that under Cap 513, one of the restrictions on the issue of an Inward Warrant is that the act or omission constituting the conduct in respect of which the foreign sentence was imposed must amount to conduct which, if the conduct had occurred in Hong Kong, would constitute a criminal offence under the law of Hong Kong.

82.  In my view, the wordings of section 3(1)(b) of the Ordinance and the provisions in the Regulation made thereunder are more than apt to cover the case of a transferred prisoner.  Indeed neither section 3 nor any other provisions in the Ordinance or the Regulation place any geographical restrictions in respect of the sentencing court or the place where the relevant offence was committed (except, of course, where a specified statutory offence is involved).

83.  In conclusion, I take the view that construing the Ordinance as applicable not only to local prisoners but also to transferred prisoners would not do any unacceptable violence to the ordinary and natural meaning of the language used by the Ordinance.

84.  That being the case, and given the context and purpose of the Ordinance, in my view, on a proper interpretation of the Ordinance, it applies to a transferred prisoner just as it applies to a local prisoner.

9.9   Interpretative presumptions

85.  In other words, on a purposive interpretation of the Ordinance and its relevant provisions, there is no doubt that the Ordinance applies to a transferred prisoner.  That being the case, the aids to statutory interpretation relied on by Mr Kwok simply are not engaged.

86.  In particular, I do not accept Mr Kwok’s argument that the supervision order to be made under the Ordinance is penal in nature.  Both local and overseas authorities are to the effect that it is not penal or criminal in nature: see Lui Tat Hang Louis, supra; R (West) v Parole Board [2005] 1 WLR 350.

87.  In relation to the presumption that even the most general words in a statute were intended to be subject to the basic rights of the individual, I would make two observations.  First, whether the suggested encroachment on fundamental rights can be justified will be dealt with as the third issue below.  In other words, if the suggested interference can be justified, it is difficult to see why as a matter of interpretation, the Ordinance has to be construed as to exclude transferred prisoners from its scope of operation despite clear wording to that effect.

88.  Secondly, insofar as Mr Kwok is actually saying that because of some ambiguity in the wording of the Ordinance, it should be construed as not applying to transferred prisoners given that fundamental rights are potentially involved, the short answer is that on a purposive interpretation of the Ordinance, there is no such ambiguity.

9.10   Conclusion on the 1^st issue

89.  In conclusion, on the first issue, I hold that as a matter of proper interpretation of the Ordinance and its relevant provisions, it applies to transferred prisoners just as it applies to local prisoners.

10   2^nd issue: Applicant misled?

90.  This issue may be disposed of shortly.  The applicant claims that he has been misled by the documents provided to him for his information prior to his consenting to the transfer.  He alleges that he understood from paragraph 3C of the Annex B Statement that the provisions under Hong Kong law for post-release supervision would not apply to him because on return to Hong Kong, the balance of his sentence to be served would be less than 6 years.  He says he has been misled.  He argues that the Board must have failed to take all this into account in deciding whether to make a supervision order; alternatively, the Board has made a supervision order which is Wednesbury unreasonable; and in either case, the supervision order should be quashed.

91.  The applicant can only blame himself for any misunderstanding of what the Annex B Statement says.  The Statement, which is in both English and Chinese, clearly says in paragraph 3C that a prisoner serving a sentence of 6 years or more or sentenced to 2 years or more for specific types of offences, such as triad related offences, sexual offences or crimes of violence, will be considered by the Board for post-release supervision.  The fact that after returning to Hong Kong, the remainder of the applicant’s sentence would be less than 6 years does not alter the fact that he had been serving a sentence of more than 6 years, and was thus within the scope of the Ordinance.  Indeed paragraph 4 of the Statement clearly states that the applicant’s sentence falls within the Ordinance and the Board will consider his case and he may be subject to a period of supervision following his release.

92.  In those circumstances, it is difficult to see how the Board can be criticised for not giving any weight to this complaint by the applicant.  In fact, the Board has clearly in its letter dated 14 July 2009 replied to the applicant about the alleged misrepresentation.

93.  There is no merit in the second ground of challenge.

11   3^rd issue: Compatibility of supervision conditions with fundamental rights

94.  The last ground of challenge relied on by the applicant is directed against conditions (3), (5), (6), (7) and (9) of the supervision order.  Although the right to privacy has also been mentioned in the Form 86, Mr Kwok has essentially relied on the right to freedom of movement and of choosing one’s residence, the right to travel, and the right to freedom of choice of occupation, in support of his challenge.

95.  Mr Kwok argues that the conditions in question restrict the rights of the applicant and are unconstitutional.

11.1   Movement, travel and choice of residence

96.  Conditions (3), (5) and (6) may be taken together.  Condition (3) requires the applicant to inform his supervising officer at once of any changes in his home and office address or any employment particulars including dismissals.  Condition (5) requires the applicant to inform his supervising officer of the intention to leave Hong Kong for a specified period or of the intention to take up residence abroad.  Condition (6) stipulates that the applicant shall reside at an address approved by his supervising officer.

97.  Mr Kwok argues that those conditions (leaving the employment aspect thereof aside for the time being) interfere with the applicant’s right to freedom of movement and right to travel, as well as his freedom of choice of residence guaranteed under article 31 of the Basic Law and article 8(1) and (2) of the Hong Kong Bill of Rights.

98.  Mr Kwok accepts that under the Ordinance, a breach of a condition in the supervision order does not automatically lead to a recall of the released prisoner.  As described, it is only where the Board is satisfied that the released prisoner has “without lawful authority or reasonable excuse” failed to comply with any term or condition of the relevant supervision order that it “may” order that the supervision order be suspended, in which event the Commissioner of Correctional Services shall recall the released prisoner to prison and re-imprison him for the period of the suspension.

99.  To this extent, the present case may be distinguished from Official Receiver & Trustee in Bankruptcy of Chan Wing Hing v Chan Wing Hing (2006) 9 HKCFAR 545 and Yao Man Fai George v The Director of Social Welfare, HCAL 69/2009, 21 June 2010, Andrew Cheung J, where the relevant sanction in each case followed automatically from any departure from the stipulated mode of exercising the right to travel.

100.  However, Mr Kwok also relies on the earlier case of The Association of Expatriate Civil Servants of Hong Kong v The Chief Executive of HKSAR [1998] 1 HKLRD 615, 624 to 625, where Keith J (as he then was) took the view that the right protected by article 8(2) of the Hong Kong Bill of Rights is a right to leave Hong Kong “without suffering any disadvantage as a result of exercising that right”.  In that case, the relevant colonial regulation required an officer under interdiction not to leave Hong Kong during the interval before he was reinstated or dismissed, “without the permission of the Governor”.  If he left Hong Kong without first obtaining permission to leave, the disadvantage he suffered was the possibility of having to face disciplinary action, which could result in his dismissal and forfeiture of all claims to any pension or gratuity.  The learned Judge held that the relevant colonial regulation amounted to a restriction on the officer’s right to leave Hong Kong.

101.  Mr Kwok therefore argues that the conditions restrict the applicant’s relevant rights, even though a breach of the conditions does not lead automatically to a suspension of the order or a recall.  A mere possibility that this could happen is sufficient to constitute a restriction on the applicant’s right.

102.  For my part, I accept that in order to constitute a restriction, the sanction following non-compliance with the direct or indirect requirement placed on the exercise of the right to movement or to travel need not be automatic.  On the other hand, a mere possibility of sanction following non-compliance may or may not be sufficient to found a case of restriction.  In my view, it really turns on the facts of each case.

103.  In the present case, I am prepared to proceed on the assumption that the conditions in question do amount to a restriction on the relevant rights.  The important question is whether the restrictions can be justified.

104.  In this regard, one notes that unlike the position with article 31, the justification permitted under article 8 of the Hong Kong Bill of Rights is limited by article 8(3).  In other words, the permitted justification is limited to the protection of national security, public order, public health or morals or the rights and freedoms of others.  This difference does not assume any significance in the present case because one is concerned with re-integration and prevention of re-offending, and therefore the protection of public order and of the rights and freedoms of others is engaged.

105.  Justification is determined in terms of a legitimate aim; a rational connection between the legitimate aim and the restriction in question; and whether the restriction is no more than is necessary to achieve the legitimate aim.

106.  Here, the legitimate aims are quite obviously the re-integration of the prisoner and the prevention of re-offending.

107.  Conditions (3), (5) and (6) obviously have a rational connection with re-integration and the prevention of re-offending.

108.  As has been explained in the evidence, one of the main aims of the post-release supervision scheme is to provide counselling and advice to discharged prisoners to assist them in adjusting to the life after discharge and in re-integrating into society.  To that end, the supervisee is required to meet his supervising officer regularly so that the supervising officer can monitor his progress and offer him assistance or advice on the relevant services available as and when they are required, including, for instance, comprehensive social security assistance, public housing assistance, or counselling services where there are adjustment problems in the supervisee’s family or employment settings.  Those meetings will also enable the supervising officer to detect, in as early a stage as possible, any deterioration in the performance of the supervisee, so that the officer can offer the necessary counselling to discourage him from re-offending, and in an appropriate case to bring the matter to the attention of the Board to consider whether the conditions in the supervision order have been satisfied and whether it would be a proper case to recall the supervisee, so that the public could be protected.

109.  In those circumstances, conditions concerning information on the whereabouts and movement of the supervisee to be supplied to the supervising officer are really ancillary to and essential for the effective implementation of the supervision order, for the supervising officer need to be able to locate the supervisee timeously for the purpose of carrying out the various means of supervision, including home and workplace visits.

110.  The right to approve the supervisee’s residence (condition 6) is, according to the evidence, necessary as it enables the supervising officer to monitor the environment and the individuals that the supervisee associates with after discharge.  According to the evidence, normally the supervising officer will only disapprove a supervisee from residing in a suspected vice establishment or gambling establishment, or any other premises where unlawful activities are suspected to be taking place.  According to the evidence, the place where a supervisee resides is of significance to the successful supervision of a supervisee, in order to achieve the ultimate goal of re-integration and the prevention of re-offending.  Therefore, for instance, a request to live apart from the family, in the case of a young supervisee, may not be entertained, unless it is with the consent of the family.  In any event, a supervising officer would be interested to find out whether there are friends living together with the supervisee and their identities, for better supervision to the supervisee.  Home visits and “surprise checks” are carried out regularly.

111.  In this regard, one must bear in mind that the rights and powers given to a supervising officer under the conditions are subject to the control of public law.  In other words, approval of residence cannot be withheld unreasonably (in the public law sense) or for any other reasons that may be challenged under public law.

112.  According to the evidence, the supervising officer will also have to be informed of the details of the supervisee’s plans to travel outside Hong Kong because he has to ascertain whether the supervisee’s intended travel outside Hong Kong or emigration plan is genuine or is merely a way to evade supervision.  It should be noted that there is no power to stop a supervisee from leaving Hong Kong or from emigrating to other places if the supervising officer is properly informed of such plans.  In the absence of other matters satisfying the requirements in section 13(1) of the Ordinance, there is no power to recall the supervisee solely on the ground of his departure from Hong Kong.

113.  For all these general and practical reasons, I take the view that not only are the conditions rationally connected to the legitimate aims of re-integration and prevention of re-offending, but they are also no more than is necessary for the achieving of those aims, when the matter is considered in the round and realistically.

11.2   Employment

114.  As for conditions (3) (insofar as it requires the reporting of any employment particulars including dismissals), (7) and (9), they relate to article 33 of the Basic Law which stipulates that “Hong Kong residents shall have freedom of choice of occupation”.

115.  Condition (7) requires the applicant to undertake only such employment as approved by his supervising officer.  Condition (9) provides that the applicant shall not, without reasonable excuse, fail to engage himself in gainful employment in accordance with the instructions of his supervising officer.

116.  In Cheng Chun-ngai Daniel v Hospital Authority, HCAL 202/2002, 12 November 2004, Hartmann J (as he then was) said of article 33 in the following terms:

“However, as I read the article, even when it is interpreted generously and purposively, it is not to be interpreted in an active sense, by which I mean that it does not guarantee the right of employment in any particular field of occupation.  Whether employment can in fact be obtained will depend on the laws of supply and demand as they apply in the market place.  The article, in my view, is to be interpreted rather in the light of what it seeks to prevent; namely, outside of issues of national service, should they ever arise, any form of conscription to particular fields of occupation.”

See also Yash Ghai, Hong Kong’s New Constitutional Order, The Resumption of Chinese Sovereignty and the Basic Law (2^nd ed), 435 to 436.

117.  I therefore doubt very much whether the right prescribed by article 33 is engaged in the present case at all.  However, even if it is, I take the view that the relevant restrictions can be justified.  Again the legitimate aims of the restrictions are not in doubt, namely, rehabilitation, re-integration and the prevention of re-offending.

118.  As for rational connection and “no-more-than-is-necessary”, according to the evidence, it is important that the supervisee should take up gainful employment where his personal circumstances, such as health, permit, so that he would be able to re-integrate into society as soon as is practicable.  Moreover, the requirement that the supervisee should undertake only such employment as approved by the supervising officers is to ensure that the supervisee will not be working in a vice establishment or any other illegal trade.  The requirement to provide employment particulars including dismissals is ancillary to these matters.

119.  From the perspective of a supervising officer working in the field, frequent change of employment is not advisable.  According to the evidence, in approving a proposed change of employment, a satisfactory reason has to be given, such as better working condition or prospect, higher income, greater travelling convenience, close down of the existing employer’s business and so forth.  The power to withhold approval of change of employment is therefore of practical significance.

120.  As employment situations may vary, a general approval requirement is imposed in order to maintain the necessary flexibility in terms of proper supervision.

121.  The withholding of approval is controlled by public law.

122.  Moreover, one must not look only at the conditions in isolation in determining whether they bear a rational connection to the legitimate aims or whether they are no more than is necessary for achieving the aims.  One must also bear in mind the statutory provisions in the Ordinance itself governing the suspension of a supervision order and the recall of the released prisoner to prison following suspension.  In particular, the Board may only order the suspension of a supervision order if the supervisee has “without lawful authority or reasonable excuse” failed to comply with the supervision conditions.

123.  Having considered the matter globally and robustly, I have come to the conclusion that the conditions in question are both rationally connected to the legitimate aims and are no more than is necessary to achieve those aims.

11.3   Privacy

124.  I have already mentioned that Mr Kwok accepts that his reliance on the right to privacy does not add anything to his arguments based on the other rights.  I need not deal with the right to privacy separately.

11.4   Conclusion on the 3^rd issue

125.  For the above reasons, I take the view that the ground of challenge based on the fundamental rights also fails.

12   Outcome

126.  For these reasons, I would dismiss the application for judicial review, and make a costs order nisi that the applicant pay to the respondent and the interested party their costs of the application, including all costs previously reserved, to be taxed if not agreed (the respondent and the interested party are represented by the same team and one set of legal costs only is involved).  I would also order legal aid taxation of the applicant’s own costs.

127.  I thank counsel for their assistance.