LO HON HING v. LONG TERM PRISON SENTENCE REVIEW BOARD

HCAL 1278/2024

[2025] HKCFI 3403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1278 OF 2024

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J U D G M E N T

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Hon Coleman J (giving the judgment of the Court):

A.  Introduction

1.  Martin Luther King said, “We must accept finite disappointment, but never lose infinite hope”. We respectfully agree with that.

2.  By his Form 86 dated 5 August 2024, the Applicant sought leave to apply for judicial review so as to challenge the decision dated 30 April 2024 (“Decision”) made by the Long-term Prison Sentences Review Board (“Board”), refusing to make a conditional release order or to make a recommendation to the Chief Executive (“CE”) to substitute his indeterminate sentence for a determinate one.

3.  On 4 September 2024, I granted leave on paper.

4.  In support of his application, the Applicant filed the following documents (in Chinese): Grounds for Application for Judicial Review dated 5 August 2024 (司法覆核申請理據) (“Applicant’s Grounds”), submissions dated 15 April 2025 (“Applicant’s 1^st Submissions”), succinct submissions dated 6 May 2025 (精簡陳詞綱要) (“Applicant’s 2^nd Submissions”), and summary of oral submissions on 18 June 2025 (司法覆核口頭陳詞概要) (“Applicant’s 3^rd Submissions”).

5.  On behalf of the Board, the Board’s secretary, Lam Him Yi, filed an affirmation dated 16 April 2025 (“Board’s Affirmation”) in opposition to the application.

6.  An oral hearing of the substantive review of the Decision was fixed for 18 June 2025. At the hearing, the Applicant acted in person and made his oral submissions through an interpreter. The Board was represented by Ms Queenie Lau SC, leading Mr Harrison Miao of Counsel.

7.  At the end of the hearing, we reserved our decision to be considered in light of and with the benefit of the materials previously filed by the parties and the oral submissions made by the Applicant and Ms Lau.

8.  This is our Judgment.

B.  Factual Background

9.  I can set out the following background matters, much of which has been helpfully summarised in Ms Lau’s skeleton submissions dated 11 June 2025, the Board’s Affirmation and the Applicant’s evidence.

B.1  The Applicant’s conviction and sentence

10.  On 22 September 1999, the Applicant and three accomplices carried out an armed attack on a newspaper vendor who was chopped to death (“Attack”). During the Attack, the Applicant acted as the lookout.

11.  Upon conviction of murder on 26 March 2007, the Applicant was sentenced to mandatory life imprisonment (“Sentence”). It was the eighth time that the Applicant had served a sentence at a correctional facility.

B.2  Reviews of the Applicant’s sentence by the Board

12.  The Board is a creature of statute under the Long-term Sentences Review Ordinance Cap 524 (“Ordinance”).

13.  Between 2012 and 2024, the Board conducted eight reviews of the Applicant’s Sentence in total: seven “regular reviews” in 2012, 2014, 2016, 2018, 2020, 2022 and 2024; and one “special review” in 2013.

14.  The differences between a “regular review” and “special review” are as follows:

(1)  A “regular review” is usually conducted for the first time after the fifth anniversary of the commencement of the sentence, and is conducted every two years thereafter until the Board considers it appropriate to make a recommendation for sentence substitution and the CE accepts the recommendation. The Board would usually obtain through its Secretariat a correctional services report, a criminal record, a social welfare report, and court records. In addition, for a prisoner who has performed exceptionally well and is likely to merit a recommendation for sentence remission, or if the Board wishes to obtain more information about the prisoner, the Board may also request a special assessment.

(2)  A “special review” is conducted pursuant to the referral from the CE. In view of the special nature of the referral, the usual practice of the Board is to obtain a special assessment report. The Board would apply the same approach to reviewing the sentence of the prisoner.

15.  In 2013, after the Applicant had made a petition to the CE, and the CE had referred the case to the Board, it then conducted a special review of the Applicant’s Sentence. For this review, following its usual practice, the Secretariat of the Board obtained a special assessment report, comprising a Police Report dated 23 May 2013, a psychological report dated 30 May 2013, and a psychiatric report dated 22 April 2013.

16.  During these reviews, the Applicant relied on two instances of his assistance to law enforcement agencies as a mitigating factor:

(1)  He helped to stop an attack on another prisoner when he was serving his sentence at Stanley Prison in 2006.

(2)  He testified against the masterminds of the Attack which led to their conviction in the criminal case, HCCC 399/2010.

17.  In each review since 2013, the Board noted that it would continue to take into account the Applicant’s assistance as a consideration or positive factor in future reviews.

B.3  Latest Review of the Applicant’s Sentence by the Board

18.  On 30 April 2024, the Board conducted the latest review of the Applicant’s Sentence, in which the following materials were considered:

(1)  a correctional services report dated 8 December 2023;

(2)  a medical report dated 6 November 2023;

(3)  additional information dated 31 October 2023 on assistance rendered to law enforcement agencies filled in by the Applicant and memoranda issued by the Commissioner of Police dated 23 May 2013 and 22 February 2024;

(4)  a criminal record summary;

(5)  a social welfare report dated 15 February 2024;

(6)  transcripts of the relevant summing up and sentencing hearings;

(7)  written representations from the Applicant dated 15 December 2023; and

(8)  letters in support of the Applicant.

B.4  The Board’s Decision

19.  By the Decision, the Board refused to make an order for conditional release or a recommendation for sentence substitution. The Decision was communicated to the Applicant by letter dated 5 June 2024, in terms as follows:

委員會在覆核你的刑罰時，首要顧及《長期監禁刑罰覆核條例》第8條列明的原則，並審閲了有關你的所有報告和文件，包括你呈交的陳述書連附件，以及其他人爲你提交的信件。委員會亦考慮過列於《長期監禁刑罰覆核條例》附表1所適用的事宜及其他有關的事宜。委員會留意到你已服刑17年零1個月（由判刑當日起計算），自2018年起在懲教院所的表現維持在非常良好的水平，並再次確認你曾經指證你同案的兩名主犯並在庭上作供(即法庭案件編號HCCC 399/2010)，以及你在2006年曾經協助阻止另外兩名囚犯向一名囚犯襲擊（即法庭案件編號 ESCC 2353/2006）, 均爲有用協助。然而，你所犯的罪行嚴重：因報紙分銷的糾紛，一名女報販被斬死。

經考慮所有有關的資料和事宜、你所犯罪行的性質、你曾向警方提供的協助、你在院所的表現、以及你已服刑的時間後，委員會認爲在所有情況下，你已服刑的時間並不足夠，故此決定不向你作出有條件釋放令，以及不向行政長官建議將你的刑罰改爲有限期刑罰。在日後覆核你的刑罰時，委員會會繼續將上述兩項的協助列作考慮因素之一。

Translation: In reviewing your sentence, the Board had primary regard to the principles set out in section 8 of the Long-term Prison Sentence Review Ordinance, and read all of the reports and documents relating to you, including the written representations and attachments submitted by you, and the letters submitted by others on your behalf. The Board also considered the applicable matters listed in Schedule 1 of the Long-term Prison Sentence Review Regulation and other relevant matters. The Board noted that you have served your sentence for 17 years and 1 month (calculated from the date of sentencing), that [your] performance at correctional facilities had been maintained at a very good level since 2018, and again confirmed that you had given evidence against two main assailants in your case and had testified in court (i.e., court case number HCCC 399/2010), and that you had assisted in stopping two other inmates from attacking an inmate in 2006 (i.e., court case number ESCC 2352/2006), which were both useful assistance. However, the crime that you have committed is serious: due to a dispute over distribution of newspapers, a female newspaper vendor was chopped to death.

After considering all relevant information and matters, the nature of the crime that you have committed, the assistance that you have rendered to the police, your performance at the facilities, and the length of sentence that you have served, the Board takes the view that in all the circumstances, the length of the sentence that you have served is insufficient, and has thus decided not to make a conditional release order, and not to make a recommendation to the Chief Executive to substitute your sentence with a determinate sentence. In reviewing your sentence in the future, the Board would continue to take into account the aforesaid two instances of assistance as one of the considerations.

20.  It may be relevant that the Decision is in a format and wording very similar to a number of the previous decisions, actually materially identical to the 2022 decision.

C.  Grounds of Review

21.  As set out in the Applicant’s Grounds and Submissions, the Applicant has raised four Grounds of review to challenge the Board’s Decision. In a way with which we agree, Ms Lau has summarised the Grounds as follows:

(1)  Ground 1: The Board failed to take into account relevant considerations.

(2)  Ground 2: The Board failed to give sufficient reasons.

(3)  Ground 3: The Board acted irrationally by adopting different approaches in assessing his psychological and psychiatric conditions.

(4)  Ground 4: The Board failed to give effect to the Applicant’s legitimate expectation.

22.  We can deal with each of the Grounds in turn, though there is some degree of overlap between them.

D.  Statutory Provisions Engaged

23.  Before doing so, it is helpful to set out the statutory provisions and regime applicable to the present case.

24.  The principal function of the Board is set out in Section 7 of the Ordinance as follows:

7. Principal function of Board

The principal function of the Board is to conduct reviews of the following kinds of sentences—

(a) indeterminate and long-term sentences of prisoners sentenced in Hong Kong;

(b) the detention of prisoners at Executive discretion;

(c) the sentences of juvenile prisoners;

(d) indeterminate and long-term sentences of transferred prisoners.

25.  Section 8 of the Ordinance provides that the Board must have primary regard to the following four principles in exercising its functions or performing its duties in relation to a prisoner:

8. Principles on which Board is required to exercise or perform its functions and duties

The Board must have primary regard to the following principles when exercising its functions or performing its duties in relation to a prisoner—

(a) in any case where the prisoner has not been completely rehabilitated, the rehabilitative effect of releasing the prisoner from detention before the unremitted part of the prisoner’s sentence is served;

(b) the benefits to the prisoner and to the community arising from the prisoner being supervised after release with a view to securing, or increasing the likelihood of securing, the prisoner’s rehabilitation (in any case where the prisoner has not been completely rehabilitated) and successful reintegration into the community;

(c) whether the part of the prisoner’s sentence already served 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;

(d) the need to protect members of the community from reasonably foreseeable harm that could be inflicted by the prisoner as a result of having been released from detention early.

26.  Section 2 of the Long-term Prison Sentences Review Regulation (“Regulation”) provides:

2. Matters taken into account by Board

For the purpose of reviewing a prisoner’s sentence under the Ordinance, the Board may take into account the matters mentioned in Schedule 1 and any other matters the Board considers relevant.

27.  The matters listed under Schedule 1 to the Regulation which the Board may take into account are as follows:

Schedule 1

[s. 2]

Matters that may be taken into Account by Board

1. The nature of the offence

2. The prisoner’s criminal record

3. Reports, if any, made by the trial judge in relation to the offence

4. Any mitigating circumstances

5. Remorse shown by the prisoner for the offence

6. The prisoner’s response to counselling and rehabilitative treatment

7. The prisoner’s age when the offence was committed

8. The prisoner’s rehabilitation prospects and employment prospects on release

9. Sentences in other similar cases

10. Public interest, including public safety and the likelihood of commission of the same or further offence

11. The prisoner’s psychological condition

12. The prisoner’s psychiatric condition

13. The prisoner’s conduct in prison

14. The prisoner’s state of health

15. The prisoner’s age

16. The length of time the prisoner has served in prison

17. The minimum term of the prisoner’s sentence (if applicable)

18. Any assistance provided by the prisoner to law enforcement agencies

E.  Ground 1: Failure to Consider Relevant Factors

28.  The gist of the Applicant’s complaint under Ground 1 is that the Board failed to take into account relevant considerations, including his psychological and psychiatric conditions, likelihood of re-offending, or recommendations by the Commissioner of Correctional Services (“CCS”) to conduct a special review on his rehabilitation progress.

29.  The applicable legal principles are well-settled. In the context of a challenge based upon an alleged failure on the part of the decision-maker to take into account a relevant consideration, a distinction is to be made between (1) matters which the relevant legislation identifies as considerations to which regard must be had, (2) matters which the relevant legislation identifies as considerations to which regard must not be had, and (3) matters to which the decision-maker may have regard if, in his judgment and discretion, he thinks it right to do so. In relation to the discretionary category, what is and is not a relevant consideration is for the decision-maker and not the Court to decide, and the weight to be given to a relevant factor is also a matter for the decision-maker and not the Court.

30.  In his 1^st Submissions, the Applicant made the following arguments, which are in summary that:

(1)  the Decision has not taken into account a full range of factors such as response to counselling and rehabilitation treatment, psychological condition and mental state, etc., which are covered in Schedule 1 to the Regulation, and has contravened section 8(a), (b) and (d) of the Ordinance, which require full consideration of the rehabilitative effects of the prisoner’s release, the benefits of post-release supervision to the community and to the prisoner, and the need to protect the community;

(2)  In Nancy Ann Kissel v The Long-term Prison Sentences Review Board [2020] HKCA 490 (“Kissel (CA)”), the Court of Appeal stated that in every sentence review, the Board should take into account the full range of up-to-date circumstances (relating to the prisoner as a basis for the adequacy of the sentence) which may change from time to time and should be considered afresh.

(3)  The Board’s over-emphasis on insufficient time served overlooks the wider considerations provided for in the Ordinance. The review of the Board has to be comprehensive and to address all the circumstances at the prisoners’ then status, not just the length of sentence served.

(4)  The Court in Kissel (CA) emphasised the need for the Board, when making an adverse decision, to let prisoners know what matters are relevant to the Board’s deliberations and to state the reasons for its disagreement in accordance with section 8 of the Ordinance and the legal requirements of Schedule 1, so long as the reasons given satisfy the legal requirements.

31.  In his 2^nd Submissions, 3^rd Submissions and oral submissions, similar arguments were relied upon by the Applicant.

32.  In particular, the Applicant stressed that since 2013, he has not received any psychological assessment, but the Board in its review has taken the prior assessment result into account; and in the 2024 Review Report, it acknowledged that his performance at the correctional facilities was assessed as excellent since 2018, but ignored the fact that since 2018 the CCS has made recommendation for the Applicant to receive special assessment.

33.  Ms Lau submitted that the Applicant’s contention under Ground 1 has been couched in terms of alleged “improper procedure” and “error of law”, which must be rejected for several reasons.

34.  First, she submitted, the Applicant’s complaint that the Board has failed to consider three factors, namely his (1) psychological conditions, (2) psychiatric conditions, and (3) likelihood of re-offence, could not be substantiated because those are not mandatory factors which the Board must consider under section 8 of the Ordinance, but are only relevant matters which the Board may take into account as provided under Schedule 1 to the Regulation (at §§10-12).

35.  Secondly, Ms Lau submitted that while the Board is required to have primary regard to the principles under section 8 of the Ordinance (i.e. rehabilitation, sufficiency of sentence served, and risks to members of the public), the relevance and weight given to individual factors relating to these principles are matters for the Board.

36.  Thirdly, she submitted that the Board is empowered, but not required, to obtain a special assessment report to cover matters such as the prisoner’s psychological or psychiatrist conditions, or on his likelihood of rehabilitation upon release under section 14(1) of the Ordinance.

37.  Fourthly, Ms Lau submitted that the Board’s approach in making the Decision was not irrational because:

(1)  The Board is required to approach section 8(c) in two steps. First, it is required to determine whether the prisoner has served a sufficiently long sentence. Second, if and only if the Board decides that the threshold or triggering period has been met, it should then consider whether the prisoner should be released early: see A v Chief Executive [2013] 4 HKLRD 404 at §§28-29.

(2)  As required by section 8(c), the Board has to consider all the circumstances especially the nature of the offence in determining the first step of the assessment. Here, this was considered by the Board alongside the length of sentence served by the Applicant, his assistance to law enforcement, his performance in correctional facilities, and all relevant materials placed before it.

(3)  The three factors identified by the Applicant relate primarily to the risk caused to the public at large or the prisoner himself in case of early release, and are more material to the second step of the assessment.

(4)  The second step is not engaged unless and until the Board considers that the Applicant has served a sufficiently long sentence. Therefore, less relevance and weight were given to these factors in approaching the first step of the assessment, justifying not to obtain a special assessment report.

38.  Ms Lau further emphasised that the reliance by the Applicant on Kissel (CA) cannot assist him in advancing his case for the following reasons:

(1)  First, the observations in Kissel(CA) must be understood against the context, because in that case it was deciding whether the Board had a duty to fix a triggering period under section 8(c). The Court therefore observed that the Board is required to consider all the circumstances in assessing sufficiency of the sentence served by the prisoner, including circumstances which will change from time to time. It is not desirable to require the Board to fix a triggering period: see §§61-62.

(2)  Secondly, the Court in Kissel(CA) only noted that the Board should consider the sufficiency of sentence served having regard to all the circumstances under section 8(c): see §61. It plainly did not purport to take away the Board’s power to decide on the relevance and weight of individual factors. In particular, the Court did not purport to turn all the factors listed in Schedule 1 to the Regulation into mandatory factors which must be taken into account in the Board’s review of a sentence.

39.  Kissel (CA) was an appeal from Nancy Ann Kissel v The Long-term Prison Sentences Review Board [2018] HKCFI 1085 (“Kissel (CFI)”), and we think it is helpful to set out the relevant parts of the Court of First Instance (“CFI”) judgment at §§32-37, regarding the Board’s performance of its functions and duties by having regard to the principles set in section 8 of the Ordinance and Schedule 1 to the Regulation (bold emphasis added, italics in original):

32. In this respect, it is worthwhile to first look at the functions and duties of the Board. The purpose of the Ordinance is to provide for the review of prison sentences, among others, imposed on prisoners sentenced in Hong Kong to indeterminate or long‑term sentences. Indeterminate sentence means a mandatory life sentence or a discretionary life sentence or detention at Executive discretion. The Board is established under the Ordinance and it has the functions conferred and the duties imposed on it by the Ordinance. Hence the principal function of the Board is to conduct review of, among others, indeterminate and long‑term sentences of prisoners sentenced in Hong Kong. Section 8 of the Ordinance sets out the four principles on which the Board is required to exercise or perform its functions and duties.

33. For the purpose of reviewing a prisoner’s sentence under the Ordinance, the Board may take into account the matters mentioned in Schedule 1 of its Regulation and any other matters the Board considers relevant. Taking all that together, the Board in carrying out its function of reviewing an indeterminate sentence must have regard to the four principles stated in Section 8 on each and every occasion. That of course includes Section 8(c). In other words, it seems clear to us that the Board must consider each individual prisoner’s application afresh every time since the circumstances of the prisoner may change significantly between one review and the next.

34. Considered against the above, there was no question that the Board should by the time of the Decision have in its mind a definite period of sentence that the Applicant had already served to trigger the consideration. As pointed out, mandatory life sentence remains to be one singular sentence subject to executive clemency. Whether the “sufficient period” has been reached in any particular case depends on a number of interacting matters and the Board is required to bear in mind all the principles and matters stated in the Ordinance and its Regulation in adopting a holistic approach in its assessment. This is a multi‑faceted fact sensitive assessment. The status of each of these interacting matters relating to a particular prisoner by its own nature may vary and change every time he or she comes for review.

35. Hence, by definition, the Board could only form a view as to whether the “sufficient period” has been reached in relation to a particular prison only at the time of the particular review by assessing the cumulative result of these interacting matters with their then extant status. If the Board does not find that the “sufficient period” has been reached at a particular review by reference to the then status of these interacting matters, it does not mean that it must and could then form a view as to when or how long before that “sufficient period” could be reached, as that would be dependent on the future status of those interacting matters.

36. Further, it is also worth noting this. To set a minimum term for all prisoners, whether they are serving mandatory life sentence, discretionary life sentence or long‑term sentence ie sentences more than 10 years, indeed may cut both ways because on reviewing the sentence of a prisoner, the Board is not authorised to order the early release of a prisoner before any minimum term applicable to the prisoner has been served. That is, not to mention, there is the statutory definition of what amounts to minimum term in the Ordinance. In Schedule 1 of its Regulation, it is only “the minimum term of the prisoner’s sentence (if applicable)” that may be taken into account by the Board.

37. It is therefore our view that on each occasion the Board and its members, who come to the meeting with their diverse backgrounds and expertise, are required to examine the circumstances as at that time pertaining to each prisoner by carefully balancing the nature of the offence with other circumstances, to come to a decision whether the point in time has been reached where the Board ought to consider that the sentence already served warrants consideration being given for having the prisoner released from detention earlier.

38. In this respect, the prisoners are well aware of what matters are relevant to the Board’s consideration as identified in the statute relevant to the review. They are free and entitled to make whatever full representations relating to those matters to convince the Board to exercise its power in their favour. In the premises, leaving aside our above conclusion that it is simply not open, inappropriate and impracticable for the Board to identify the triggering period or the punitive part of the sentence in rejecting a review, there is also no question that the prisoners are somehow unfairly prejudiced in not being able to make informed representations without knowing the “triggering period” or the punitive part of the sentence.

40.  These points were not doubted on appeal. As clearly stated in Kissel (CFI) at §§32 and 34, in the exercise of its functions or performance of its duties in relation to a prisoner, it is a mandatory requirement under section 8 of the Ordinance for the Board to have primary regard to all four principles in sections 8(a), (b), (c) and (d) on each and every occasion: see also Kissel (CA) at §1.

41.  It seems that in both her skeleton submissions and oral submissions, the main thrust of Ms Lau’s argument was that the Board’s reliance on section 8(c) of the Ordinance, i.e. the insufficiency of the sentence served in view of the nature of the offence, was the primary consideration in making the Decision and that was permissible.

42.  With respect, we do not agree with Ms Lau’s analysis, or any idea that section 8(c) acts as a kind of ‘trump card’.

43.  First, whether other principles as stated in section 8 of the Ordinance were taken into account by the Board in its decision-making process can be seen from the following parts of the Board’s Affirmation (§§67-73) in response to Ground 1 (emphasis added):

67. The Applicant submits that the Board has failed to consider factors such as his psychological and psychiatric conditions, his likelihood of reoffence, or the CCS’s recommendation to conduct special assessment.

68. I have been advised and understand that, other than the mandatory factors in section 8, the Board is entitled to take into account matters which it deems to be relevant in reviewing a prisoner’s sentence. Further, the Board is also entitled to decide on the weight to be given on the factors which it regards to be relevant.

69. In the case of the Applicant, the Board took the view that he had not served a long enough sentence in the circumstances to merit early release. I refer to the letter dated 5 June 2024 [Attachment 11.8]. In other words, the Board did not regard the Applicant as having met the threshold period for him to be considered for early release.

70. The factors highlighted by the Applicant, including his psychological and psychiatric conditions and his likelihood of reoffence, are factors which relate to the Applicant’s abilities to rehabilitate and reintegrate into the community (section 8(b)) and the need to protect members of the community from reasonably foreseeable harm that could be inflicted by the prisoner released early (section 8(d)), and which would be material to the question of whether the Applicant is suitable for early release. However, unless and until the Board considers that the Applicant has served the threshold period, the question of whether and when he should be released early does not arise for the Board’s consideration.

71. Further, the Board would exercise its independent judgment as to whether it should obtain a special assessment report for a prisoner. It would not necessarily obtain one even if one has been recommended by the CSD.

72. As noted in paragraph 25.2 above, the Board would usually only request a special assessment report for a prisoner who has performed exceptionally well and is likely to merit a recommendation for sentence remission, or if the Board wishes to obtain more information about the prisoner. In other words, a special assessment report is primarily used to facilitate the Board’s assessment of whether a prisoner should be given early release; which would not become an issue unless and until the Board formed the view that the prisoner had served a sufficient threshold period to warrant consideration of early consideration in the first place.

73. In particular, the special assessment report would include, among other things, a psychological report and a psychiatric report, which are material to the prisoner’s ability to rehabilitate and reintegrated into the community and likelihood of reoffence. Where the Board does not consider that the prisoner has served the threshold period, the question of whether the prisoner should be released early, and hence the issues of whether he would be able to rehabilitate and integrate into society and whether he would likely reoffend, do not arise for the Board’s consideration.

44.  As can be seen in the above, on the ground that the Applicant “had not served a long enough sentence in the circumstances to merit early release” (§69), at least some of the mandatory factors – the Applicant’s rehabilitation and reintegration under section 8(b) and risk to the community under section 8(d) – were thought by the Board as issues which “do not arise for the Board’s consideration” (§§70 and 73 – in particular the part with emphasis added). That is, the view taken on section 8(c) was, as was also emphasised by Ms Lau, the determinative factor in making the Decision, on the basis that a decision on section 8(c) was capable of leading – and in this case in fact led – to shutting out the need to consider the other factors.

45.  On a proper reading of the Decision – which contained a ‘finding’ on section 8(c), but not the other paragraphs of section 8 – and the Board’s Affirmation read together, it seems fair to say that the Board did not give due regard to the mandatory factors under section 8 of the Ordinance in its decision-making process.

46.  Further, in Kissel (CA) at §61, the Court was of the view that apart from the nature of the offence, the prisoner’s current circumstances, including “rehabilitation” and “risk”, as at the time of the Board’s review are relevant considerations for assessment of the part of the sentence already served (emphasis added):

61. As rightly pointed out by the Judges [i.e. in Kissel (CFI)], under section 8(c), on each review the Board must consider the question of sufficiency by reference to all the circumstances, giving due regard in particular to the nature of the offence. Put another way, the nature of the offence is a particular but not the only circumstance that the Board must take into account in assessing the sufficiency or otherwise of the part of the prisoner’s sentence already served. Other than the nature of the offence, all circumstances pertaining to the prisoner, including rehabilitation and risk, are liable to change from time to time. That being the case, the Board must have regard to the prisoner’s current circumstances as at the time of the review in assessing the sufficiency of his sentence already served.

47.  This seems to us to be obvious, because the four mandatory factors in section 8 are at least capable of interaction, with one or more factors potentially affecting the others. For example, one element or purpose within any prison sentence is to achieve rehabilitation, and another element would be to avoid risk of foreseeable harm. Both of those matters might impact the view as to whether the period of sentence already served is sufficient in all the circumstances to warrant consideration being given to having the prisoner released from detention early.

48.  Indeed, section 8(a) mandates that in any case where the view is taken that the prisoner has not been completely rehabilitated, consideration should be given to the rehabilitative effect of releasing the prisoner from sentence before the unremitted part of the sentences served. The benefit of the rehabilitative effect of release is obviously potentially one of the circumstances which might impact whether the part of the prisoner’s sentence already served is sufficient to warrant consideration for that early release.

49.  It is also of note that section 8 does not suggest in any way – either by its wording, or by its structure – that one of the paragraphs, let alone the third mentioned paragraph (c), is necessarily more important than the others, and/or so important as in effect to amount to a precondition for consideration of the others. It seems to us to be clear that the section 8 exercise is a holistic one, requiring a perhaps iterative process of consideration giving appropriate weight to all four elements before reaching the one conclusion.

50.  In short, giving no proper consideration to one or more of the elements or factors because of the perception or view that one element or factor has not triggered the consideration of those others is the antithesis of what the section requires.

51.  We acknowledge that in A v Chief Executive, it was held that the approach to section 8(c) involves two steps: (1) to determine whether the prisoner has served a sufficiently long sentence; and (2) if and only if the Board decides that the threshold or triggering period has been met, it should then consider whether the prisoner should be released early. But the focus was on the paragraph in section 8(c). We do not think the identification of a two-step approach to that one paragraph can be taken to mean – or was intended by that Court to mean – that sections 8(a), (b) and (d) can be ignored if the first step in the approach to section 8(c) leads to the conclusion that the prisoner has not served a sufficiently long sentence. As we have stated above, and as both the section itself and the authoritative consideration of it identify, all four factors/paragraphs must be considered, and the view taken on one is capable of impacting the view taken on another in the holistic and iterative process required.

52.  Indeed, as the Court noted in Kissel (CA) at §59, care must be taken in the approach to section 8(c), so as to avoid the unsavoury effect of rewriting the statutory scheme and effectively converting the review into a two-stage exercise.

53.  We note from the legislative history – and as was recorded in Kissel (CA) at §48 – that the original draft of section 8 did not have a paragraph in the form that became 8(c), and that it was added to address the perceived imbalance in the broader consideration of the sentence review, and to ensure that the Board would take into account the sufficiency of the sentence already served by the prisoner, and not only rehabilitation and risk. Nevertheless, we think that also only emphasises the holistic balancing exercise required, and the history does nothing to support any suggestion that the sufficiency of sentence can be looked at alone and be determinative on its own.

54.  In the present case, the Board has erred in law by focusing only on the mandatory factor under section 8(c) of the Ordinance as the starting point – and in effect the end point – of its review, without having proper regard to and wider consideration of all other mandatory factors, including those of rehabilitation and risk, as set out in the same section. The error of falling into a two-stage exercise, against which the Court of Appeal cautioned, appears to have occurred.

55.  Further, whilst it is correct that psychological condition, psychiatric condition and likelihood of reoffending are three of the non-mandatory Schedule 1 considerations which the Board may, but may choose not to, take into account, the Board cannot refuse to take them into account on the basis that those features go to rehabilitation and risk, and there is no need to consider rehabilitation or risk because of the view taken as to sufficiency of the length of sentence served. We do not accept that those factors are only relevant to the second step of the section 8(c) assessment.

56.  The correct approach would be to acknowledge that section 8 mandates questions of rehabilitation, reintegration, sufficiency of sentence and risk all to be taken into consideration as a holistic assessment, and that when those are mandatorily taken into consideration it is open to the Board to take account of and weigh as appropriate the factors identified in Schedule 1.

57.  Indeed, on the Board’s own explanation of its reasoning and approach, it thought that psychological condition, psychiatric condition and likelihood of reoffending are or would be relevant to a consideration of the factors of rehabilitation and risk. For the Board then to have refused to take them into account, on the basis that the Board apparently did so, was a procedural error.

58.  The way in which the Decision was written causes us doubt as to whether the Board in fact took the required holistic approach, and that doubt seems to be confirmed by what was said in the affirmation evidence, and indeed from the arguments advanced for the Board in this case.

59.  Hence, with respect to the members of the Board, we do not think that they showed the correct understanding of the application and interaction of the four principles and the holistic consideration as set out in and required by section 8 of the Ordinance. There was, therefore, insufficient integrity in the decision-making process. We accept the Applicant’s main submission that the Board contravened section 8(a), (b) and (d) of the Ordinance, which require full consideration of the rehabilitative effects of the prisoner’s release, the benefits of post-release supervision to the community and to the prisoner, and the need to protect the community.

60.  Ground 1 is made out.

F.  Ground 2: Failure to Give Reasons

61.  The Applicant’s allegation is that the Board has failed to inform him of its reasons for the Decision.

62.  The relevant principles in relation to the giving of reasons are well known, and they were summarized by me in Marsini v Director of Immigration [2022] HKCFI 3026 at §92 and Juthe Chhetri v Permanent Secretary for Security [2025] HKCFI 1568 at §39, as follows:

(1)  There is no general duty to give reasons for administrative decisions, but the nature or circumstances of an adjudication might indicate a necessity for giving reasons.

(2)  If and when a duty to give reasons arises, what is regarded as adequate depends on the particular facts of each case.

(3)  The Court should consider a reasons challenge with practical reality in order to prevent an application for judicial review from being turned into a merits review, and to avoid treating day-to-day administrative decision-making processes as if they were judgment-writing.

(4)  The reasons given should show that the decision-maker has addressed the substantial issues and show why the decision-maker has come to its decision.

(5)  The reasons should show that the issues that arise for serious consideration have been considered.

(6)  But the reasons in any given case may not require great elaboration, and they may be brief.

(7)  Sufficient reasons may be required so as to enable the affected individual to exercise effectively any right to appeal or review.

(8)  The giving of reasons in any individual case must be viewed in the context of that case.

(9)  Hence, it may be that the Court can have regard to the prior interaction or exchange between the parties to determine whether the reasons given are sufficient to meet the requirements of the principles.

(10)  Where the decision-maker purports to have given reasons, the reasons should be subject to the same level of scrutiny as if there was an express duty to give reasons.

(11)  A reasons challenge will only succeed if the party aggrieved can satisfy the Court that he has genuinely been substantially prejudiced by the failure of the decision-maker to provide an adequately reasoned decision.

63.  As the above principles also identify, matters should be looked at in their proper context.

64.  We accept Ms Lau’s submission that it is clear from the Applicant’s complaints that he has no difficulty in identifying the reasons given by the Board and mounting his criticisms, and in particular that, as can be seen from the Decision (as quoted above):

(1)  The main issue as considered by the Board has been set out, i.e. whether the Applicant had served a sufficient period of sentence warranting consideration for early release in accordance with section 8(c).

(2)  The relevant factors considered by the Board have been set out, e.g. the Applicant’s good behaviour, his assistance to the law enforcement agencies, length of sentence served, and the nature and circumstances of the offence.

(3)  The Board’s reasons show particular emphasis and weight given to the very serious nature and circumstances of the offence.

(4)  The Board’s reasons show that it did not consider the Applicant to have served a sufficient threshold or triggering period to warrant consideration for early release.

65.  Thus, there is no basis for the Applicant to suggest that he does not know what grounds or matters have been taken into account by the Board, and what have not.

66.  On that basis, Ground 2 falls to be rejected.

67.  However, we cannot leave this Ground 2 without making the following additional points:

(1)  By virtue of our finding on Ground 1, the reasons given in the Decision obviously do not sufficiently address the matters that we think have been erroneously excluded from the consideration (even though aspects of what would need to be addressed have been identified – there being perhaps some tension between the expression of reasons and the affidavit evidence).

(2)  The form and wording of the Decision is almost entirely repetitive of previous decisions of the Board in relation to the Applicant. To an extent, this is understandable because similar matters ought to arise for consideration on similar reviews, and it may not be problematic in itself. This was recognized in the A v Chief Executive case at §§48-52. However, and though we do not suggest that this is what in fact occurred in this case, to provide a decision letter which closely echoes (in practice simply mirrors) previous decisions might leave the prisoner with the unfortunate impression that the individual circumstances relevant to the particular review have not been addressed or grappled with, but instead there has been merely a cursory review which has not delved into the particular detail applicable at the time of the review in question.

68.  Prisoners facing a review by the Board must be prepared to accept disappointment. But each person who is subject to a review by the Board is entitled to have some hope (not an expectation) that the Board might take the view that the circumstances this time are such as to warrant consideration to recommend an early release. Such a hope will likely only promote efforts at rehabilitation and good behaviour. If such a hope is dashed by any sense that the review procedure is not real – for example, as a result of receiving near identical letters of non-recommendation year after year – that would be contrary to the promotion of rehabilitation. Indeed, if such a hope is dashed, that may lead to a regression in behaviour, arising from the sense that there is no point in being improved or showing improvement as it would not make any difference. That would be in no one’s interest.

69.  Further, if a person subject to review by the Board is not recommended for early release, we think that person is entitled to have some idea as to what he or she can do so as perhaps to improve the chances for early release on the next or subsequent occasions of review (other than merely spending further time in prison). Pro-forma letters, each one the same as the previous, do not readily meet that end.

G.  Ground 3: Irrationality

70.  It is trite that a decision is Wednesbury unreasonable or irrational in circumstances which include that the decision is so unreasonable that no reasonable authority could ever have come to it. It is also trite that establishing irrationality is a high hurdle for a judicial review applicant to overcome.

71.  The gist of the Applicant’s criticism underpinning Ground 3 is that the Board has acted irrationally in obtaining psychological and psychiatric reports for the 2013 Special Review, but not for subsequent reviews and in particular for the review in 2024 leading to the Decision.

72.  The submissions of Ms Lau in response to Ground 3 are in summary that:

(1)  The psychological and psychiatric conditions of a prisoner are not mandatory factors. It is up to the Board to decide on the relevance and weight of these factors, and the manner and intensity of inquiry into these factors, e.g. whether a special assessment report should be obtained.

(2)  The Board’s practice is to request for a special assessment report if a prisoner has performed exceptionally well and is likely to merit a recommendation for sentence remission, or if the Board wishes to obtain more information about the prisoner.

(3)  Even though the Secretariat of the Board had obtained a special assessment report on the Applicant for the 2013 Special Review, it was done only as a matter of practice where “special reviews” were conducted upon the CE’s referral.

(4)  The mere fact that a special assessment report was obtained did not mean that the report or the matters covered thereunder (e.g. psychological conditions, psychiatrist conditions, likelihood of re-offence) were given particular weight in the 2013 Special Review.

(5)  As can be seen from the Board’s decisions over the years, it was not satisfied that the Applicant had served a sufficiently long sentence, having regard to circumstances including the nature of his offence, the length of sentence served, the assistance rendered to law enforcement agencies, and his performance at custody. The Board has not yet decided the first step of the section 8(c) assessment in the Applicant’s favour.

(6)  Factors such as a prisoner’s psychological and psychiatric conditions are more material to the second step of the section 8(c) assessment. The Board is entitled not to make detailed inquiries into these factors until it has decided the first step in the Applicant’s favour.

73.  It is trite that the weight to be given to the various aspects was a matter for the Board, to be interfered with only if the conclusion was irrational or unreasonable in the public law sense.

74.  In the present case, there is a degree of overlap between Ground 3 with Ground 1. For example, the idea that the Board needs to decide the first step of the section 8(c) assessment in the Applicant’s favour before it needs to make proper enquiries into the questions of rehabilitation and risk is simply not correct.

75.  But there is the additional point that the special assessment was obtained in 2013, and by the time of the 2024 review a further 11 years of prison sentence had been served. Further, since 2018, the Applicant has been rated as an excellent prisoner, and the CCS himself has consistently suggested or called for a special assessment. It seems to us to be telling that the person in charge of the Applicant prisoner’s incarceration has been calling consistently for a special assessment, when he must know that such an assessment is ordinarily called for when a prisoner has performed exceptionally well and is likely to merit a recommendation for sentence remission, or when the Board wishes (or should wish) to obtain more information about the prisoner.

76.  Nevertheless, on the assumption that the previous special assessment, psychological and psychiatric reports were favourable to the Applicant (and there appears to be no observation to suggest otherwise), then it is not irrational in the public law sense for the Board to continue to assume in the Applicant’s favour that his condition has remained unchanged, and so to choose not to obtain a further special assessment. In those circumstances, we do not think the Decision is properly regarded as irrational on any basis separate from the Ground 1 point.

77.  Ground 3 is, thus, not made out.

78.  Of course, against the Applicant’s exemplary conduct and the continuing calls for a special assessment made by the CCS, and in light of the passage of time since the last special assessment in 2013, it may be that the Board would consider calling for a special assessment on the next occasion so as to arm itself with perhaps fuller materials upon which to consider whether to make a recommendation to the CE. But, we accept of course that whether it does so is a matter for the Board.

H.  Ground 4: Legitimate Expectation

79.  The gist of the Applicant’s complaint is that the Board has failed to give effect to his legitimate expectation that his previous assistance to law enforcement agencies would be considered as mitigating factors as opposed to relevant factors only.

80.  Ms Lau submitted that the Applicant is contending for a substantive legitimate expectation, which means a substantive outcome that his assistance would be taken into account as mitigating factors, and such contention must be rejected for the following reasons.

81.  First, she submitted that there is no clear and unambiguous representation by the Board that the assistance would be taken into account as mitigating factors in future reviews:

(1)  In the 2013 Special Review, the Board only acknowledged that the instances of assistance were useful assistance and could lead to reduction of sentence. It later noted that it would take into account the assistance as one of the considerations.

(2)  The representation or promise was only that the assistance would be taken into account, but not that it would necessarily be considered in one manner or another.

82.  Secondly, the Board has not failed to give effect to any expectation:

(1)  The Board has consistently taken into account the two instances of assistance in subsequent reviews, including the Decision (making specific reference to the assistance).

(2)  The two instances of assistance could only be factors in favour of the Applicant, which is consistent with the Board’s recognition of them as useful assistance and with the fact that the Board has listed the assistance alongside another mitigating factor (e.g. “very good” performance during custody) and in contrast with factor against clemency (e.g. severity of offence).

(3)  Even if the Board did not label the previous assistance as a mitigating factor, it clearly considered the assistance and treated them as a factor in the Applicant’s favour.

83.  We accept Ms Lau’s submissions.

84.  On the facts of the present case and looking at the Decision and the materials filed by the parties as a whole, there was no representation made by the Board to the Applicant as might properly have founded the claimed legitimate expectation. In any event, though it may not be clear what weight has actually been attached to the matters, the Applicant’s previous assistance to law enforcement agencies has been considered as a mitigating factor (and indeed would unlikely otherwise have been a relevant factor).

85.  Ground 4 is rejected.

I.  Conclusion

86.  On the law and principles applicable, Ground 1 is made out, whereas Grounds 2, 3 and 4 are rejected on the substantive application for judicial review.

87.  In the exercise of our discretion, it seems to us that the Applicant is entitled to an order quashing the Decision. We make that order.

88.  We note that the next scheduled review of the Applicant’s sentence will be conducted by the Board in April 2026. Notwithstanding the quashing of the previous Decision, we do not direct any earlier review. Instead, the time between now and April 2026 should permit the collation of any further information which, with the benefit of considering this Judgment, the Board considers in the exercise of its discretion that it ought to obtain. In light of our reasoning leading to the above conclusion, we also order the Board to conduct the review of the Applicant’s Sentence in accordance with all four mandatory principles set out in section 8 of the Ordinance.

89.  As the Applicant has acted in person, we make no order as to costs.