YAU KWONG MAN v. THE LONG TERM PRISON SENTENCE REVIEW BOARD

HCAL34/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 34 OF 2004

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J U D G M E N T

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Background

1. The applicant was convicted of murder on 26 October 1987 and sentenced to be detained “until Her Majesty’s pleasure shall be known”, (HMP) under section 70, Criminal Procedure Ordinance, Cap 221.  He was 16 years old.  Three co-defendants were convicted of murder at the same time.  There was one adult amongst them, namely Chow Cheung Ming.  Chow was sentenced to death which was the mandatory sentence at the time for murder.  Two other co-defendants were sentenced to be detained at HMP.

2. It is accepted that the ring-leader for the murder was one Kwan Chi Hung.  Kwan was convicted of murder in 1989 in HCCC20/1989 on the evidence of the applicant and his three co-defendants.

3. On 11 November 1989, Chow’s sentence was commuted to a term of 25 years.  In October 2003, the two co-defendants detained at HMP were released from prison. 

4. In December 2003, Chow was released from prison.

5. The applicant has remained in prison.

6. This is the applicant’s application for judicial review against the decisions of The Long Term Prison Sentence Review Board (“the Review Board”) reached in September 2003 and January 2004.  It is important to make clear at the outset that I am concerned with a prisoner who has been sentenced to be detained at HMP and as will be shown one who must be taken to have served his minimum term.  This judgment is not about any other kind of sentence.  I also mention that in considering the legality of the applicant’s detention, the following provisions may be relevant :

(1)              Article 80 of the Basic Law (BL 80) :

“The courts of the Hong Kong Special Administrative Region at all levels shall by the judiciary of the Region, exercising the judicial power of the Region.”  

(2)              Article 5(1) of the Bill of Rights (BOR) :

“No one shall be subjected to arbitrary arrest or detention.” 

(3)              Article 5(4) BOR :

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of the detention and order his release if the detention is not lawful.”

7. The Review Board was established by The Long Term Prison Sentences Review Ordinance, Cap.524 (“The Ordinance”) which came into force on 30 June 1997.  

8. The Ordinance was enacted together with the 1997 amendments to the Criminal Procedure Ordinance, Cap.221, in particular, section 67C (old section 67C).  The reason for the legislation can be best seen from the Brief to the LegCo Panel on security prepared by the Secretary for Security in January 1997.  This was said, in relation to young murderers sentenced before 1993 (detained at HMP) :

“11.    The European Court of Human Rights (ECHR) has taken the view that discretionary life sentences comprise two parts, namely a punitive tariff period for the offence itself and a subsequent discretionary period the purpose of which is to protect the public from the danger of that prisoner reoffending if released.  The ECHR has ruled that discretionary life prisoners are entitled to have the lawfulness of their continued detention tested before a court after expiry of the punitive tariff period under Article 5(4) of the European Convention on Human Rights.  The term ‘court’ within the meaning of the ECHR jurisprudence does not necessarily mean a judicial court of law, but could include an independent tribunal to which a prisoner may fairly put his case, and which has the power to order release if it believes that it is safe to do so.

12.    It is proposed that we make changes to the present system for reviewing discretionary life sentence cases, to bring it into line with the provisions of Article 5(4) of European Convention on Human Rights, which is virtually identical with Article 5(4) of the Hong Kong Bill of Rights.  The main proposals are -

(a)    in cases of prisoners already serving discretionary life sentence at the time the legislation comes into effect, the Chief Justice shall make recommendations to the Governor on the appropriate punitive tariff period to be set.  Such recommendations will be submitted to the Governor for approval and the decision made by the Governor in each case shall be binding and final.  There are at present 22 cases of prisoners serving discretionary life sentences;

(b)    in respect of new cases, a trial judge will be required to specify in open court the tariff period in handing down a discretionary life sentence, and to submit a written report to the Governor setting out any special considerations or circumstances for future review purposes; and

(c)    the statutory BOR, LTPS will have the power to determine whether discretionary life sentence prisoners should be released upon the expiry of the tariff period of their sentences.

13.    Prior to the abolition of capital punishment, section 70 of the Criminal Procedure Ordinance (Cap. 221) prohibited a sentence of death against convicted persons who were under the age of 18 at the time of their offences, and provided that they should be sentenced to be detained under Her Majesty’s pleasure (HMP).  When the death sentence was abolished in 1993, section 70 of the Criminal Procedure Ordinance was repealed.  Since then, judges have been left with no option but to sentence offenders under 18 years of age who have committed the offence of murder to a mandatory sentence of life imprisonment, under section 2 of the Offences Against the Persons Ordinance (Cap. 212).  The sentence for young murderers whose offence was committed before and after 1993 are different.

…..

15.    In considering future arrangements for HMP prisons, we have made reference to case law in the United Kingdom and the Europe Court of Human Rights.  A recent English Court of Appeal decision drew a distinction between a mandatory life sentence and a sentence of detention at HMP.  A similar distinction has been made by the ECHR, which has held that detention at HMP, given its nature and purpose, should be assimilated to a discretionary sentence of life imprisonment rather than to a mandatory sentence of life imprisonment.  The result is that HMP prisoners, in common with discretionary life prisoners, should be entitled to a fresh review of their detention on the expiry of the tariff period (i.e. a determinate number of years appropriate to the nature and gravity of the offence) by an independent body to consider whether they are suitable for release from custody.  It is proposed that for existing HMP cases, the Chief Justice will be asked to make recommendations on the appropriate tariff period to be set in respect of all HMP cases, in addition to discretionary life sentences.  Such recommendations will be submitted to the Governor for approval.  The BOR, LTPS will then be able to review whether these prisoners should be released upon the expiry of the tariff period.”

9. In the LegCo Brief prepared in March 1997, the Secretary for Security had this to say :

“(D)    Review of Discretionary Life Sentences Cases

6.    The European Court of Human Rights (ECHR), a key source of human rights jurisprudence, has taken the view that discretionary life sentences comprises two parts – a ‘tariff’ period to be served for punishment, and a subsequent discretionary or protective period during which the question whether it is safe to release the prisoner becomes decisive.  The ECHR has ruled that discretionary life prisoners are entitled to have the lawfulness of their continued detention tested before a court after the expiry of the punitive tariff period, under Article 5(4) of the European Convention on Human Rights.  This is important because this article is virtually identical to Article 5(4) of the Hong Kong Bill of Rights.  The term ‘court’ within the meaning of the ECHR jurisdiction does not necessarily mean a judicial court of law, but can include an independent tribunal to which a prisoner may fairly put his case.

7.    Changes are proposed to the present system for reviewing discretionary life sentence cases, having regard to the jurisprudence of the European Convention on Human Rights.  The main proposals are -

(a)    Where prisoners are already serving discretionary life sentences at the time the legislation comes into effect, the Chief Justice would make recommendations on the appropriate punitive tariff period to be set.  Such recommendations would be submitted for approval by the Governor (There are at present 12 such cases.)

(b)    In respect of new cases, the trial judge would specify, in open court, the tariff period when he imposes a discretionary life sentence, and would submit a written report to the Governor, setting out any special considerations or circumstances to be taken into account in future reviews.

(c)    The Review Board would be obliged to consider whether discretionary life sentence prisoners should be released upon the expiry of the tariff period.  Release would be effected either through the setting of a determinate sentence by the Governor or under the new Conditional Release Under Supervision Scheme, which, if successfully completed, would be followed by the setting of a determinate sentence.

(E)    Review of Sentences of Young Murderers

(a)    overview

8.    The sentences for young murderers before and after 1993 are different.  Prior to the abolition of capital punishment in 1993, section 70 of the Criminal Procedure Ordinance prohibited the death sentence for convicted persons who were under the age of 18 at the time of their offences, and provided that they should be sentenced for detention at Her Majesty’s pleasure (HMP).  This section was repealed when the death sentence was abolished in 1993.  Since then, judges have been left with no option but to sentence such offenders to a mandatory sentence of life imprisonment, under section 2 of the Offences Against the Persons Ordinance, thereby removing the differential treatment in the sentencing of adult and young murderers.

(b)    Young murderers sentenced before 1993

9.    At present, there are 20 young murderers detained at HMP.  (There are three other HMP cases which are reviewed by the Mental Health Review Tribunal.  These are adult offenders who were found not guilty by reason of insanity.)  Pursuant to Prison Rule 69A, these cases are reviewed by the BOR, LTPS, every year until the prison reaches the age of 21, and every two years thereafter, for the purposes of considering whether a recommendation should be made to the Governor for possible remission, through the setting of a determinate sentence, under Article XV of the Letters Patent.

10.    In considering future arrangements for these prisoners, we have made reference to case law in the United Kingdom and the ECHR.  In a recent English Court of Appeal decision, a distinction was drawn between a mandatory life sentence and a sentence of detention at HMP.  A similar distinction has been made by the ECHR, which has held that detention at HMP, given its nature and purpose, should be treated as equivalent to a discretionary, rather than a mandatory, sentence of life imprisonment.  Thus, HMP prisoners should be entitled to a fresh review of their detention on the expiry of the tariff period by an independent body, to consider whether they are suitable for release from custody.

11.    It is therefore proposed that, for existing HMP cases, the Chief Justice would make recommendations on the appropriate tariff period to be set.  These recommendations would be submitted to the Governor for approval.  The Review Board would then consider recommending a determinate sentence after the HMP prisoner had served his full tariff period.

(c)    Young murderers sentenced after 1993

12.    To restore the differential sentence treatment between adult and young murderers and on the grounds of equality of treatment for young murderers, before and after 1993, arrangements similar to those set out in paragraph 11 are proposed for young murderers sentenced since 1993.  For future cases, amendment to section 2 of the Offences Against the Person Ordinance is proposed, to provide discretionary life sentence (i.e. life imprisonment as the maximum sentence) as the penalty of young murderers.”

It is unnecessary for the purpose of this judgment to decide whether a sentence of detention at HMP is identical to a discretionary life sentence.  For many purposes they are the same.  However, I am only concerned with the sentence of detention at HMP.

10. The effect of old section 67C and the Ordinance was that the Chief Executive would determine the minimum term on the recommendation of the Chief Justice, and the Review Board’s duty under the Ordinance has been summarized by Mr Coleman as follows : 

“The Board’s task is:

1.    to review each relevant sentence of the individual prisoner,

2.    with the view of satisfying itself as to whether or not it is appropriate to make:

(1)    either a recommendation under section 15(1)(a), or

(2)    an order under section 15(1)(b) or (c).

3.    On the material presented to it and any matter as it thinks appropriate, taking into account all the circumstances including:

(1)    those which it must take into account under section 8, and

(2)    those which it may take into account under section 2 of the Regulation, by reference to the schedule to the Regulation.”

11. Sections 2 and 8 of the Ordinance provide as follows :

“2. Purposes of Ordinance

The purposes of this Ordinance are as follows—

(a)     to provide for the review of prison sentences imposed on prisoners sentenced in Hong Kong to indeterminate or long-term sentences;

(b)    to provide for the review of detentions of persons detained at Executive discretion;

(c)     to provide for the review of sentences imposed on juvenile prisoners;

(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.”

“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 benefitsto 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.”

12. Section 15(1)(a), (b) and (c) of the Ordinance provides :

“(1)   When reviewing the sentence of a prisoner in accordance with this Part, the Board may do such of the following as it considers appropriate-

(a)   make a recommendation to the Chief Executive that the Chief Executive should-

(i)    remit all or part of a prisoner's determinate sentence by substituting a shorter determinate sentence; or

(ii)   substitute a determinate sentence for a prisoner’s indeterminate sentence;

(b)   in the case of a prisoner who is serving an indeterminate sentence and in respect of whom the Board wishes to defer making a recommendation that the sentence should be converted by the Chief Executive to a determinate one-make an order in accordance with Part IV directing the prisoner to be conditionally released under supervision;

(c)   in the case of a prisoner whose indeterminate sentence has been converted by the Chief Executive to a determinate one-make an order in accordance with Part V directing the early release of the prisoner under supervision.”

13. Regulation 2 of the Long Term Prisoner Sentences Review Regulation provides :

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

“SCHEDULE 1
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 counseling 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 commissioner 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.”

14. The applicant’s minimum term was determined in accordance with old section 67C.  The recommendation of the Chief Justice was dated 15 December 1997.  The recommendation was made after the applicant had been given an opportunity to make written representations and consultation with the trial judge whose view the Chief Justice had taken into account. 

15. I set out below relevant extracts from the Chief Justice’s recommendation :

“Trial Judge’s Views:

This was a triad killing carried out in the most brutal, horrific [sic] and cold-blooded manner.  But in the light of what happened subsequent to the trial, I would recommend a minimum term of 16 years’ imprisonment which is equivalent to a sentence of 24 years before the one-third remission is taken into account.

Recommendation:

Taking into account the matters set out above and all the circumstances of the case, I recommend that the Prisoner should serve a minimum term of 15 years’ imprisonment.

Special considerations or circumstances to be taken into account on future review:

The Prisoner was additionally convicted of wounding two other victims with intent.  On each charge, he received concurrent sentences of eight years’ imprisonment.  After his conviction, the Prisoner provided valuable assistance to the Prosecution in High Court Case 20/89 and gave evidence that was ‘helpful and consistent’.  The accomplice was convicted.  The Prisoner has made good efforts towards rehabilitation.  Chow Cheung-ming, an adult co-defendant in the trial, had his death sentence commuted to 25 years’ imprisonment which, with remission for good conduct, will result in him serving approximately 16 years and 8 months.”

16. There is no suggestion that the applicant deserves greater punishment than Chow.  It is also to be noted that the learned trial judge who recommended a minimum term of 16 years mentioned that that was “equivalent to a sentence of 24 years before the one-third remission is taken into account”.  The 15 years’ minimum term chosen by the Chief Justice was equivalent to 22 years and 6 months.  However, the rules relating to remission do not apply to indeterminate sentences.

17. The applicant, together with another person, challenged the constitutionality of old section 67C in Yau Kwong Man v. Secretary for Security [2002] 3 HKC 457 (“Yau Kwong Man (No.1)”).  Hartmann J decided that old section 67C was unconstitutional.  Since then, new legislation has been enacted, namely, the Criminal Procedure (Amendment) Ordinance 2004.  No new minimum term has been fixed yet under the new ordinance.  However, the effect of the new section 67C(6) is that if the new minimum term is longer than the term specified under the previous recommendation, then the term so determined was to be treated as equal to the term so specified.

Nature of the sentence of detention at HMP

18. Despite the fixing of the minimum term, the sentence remained a sentence for an indeterminate term.  A prisoner who has served the minimum term might not be released upon the expiry of the minimum term.

19. Stock JA said in HKSAR v. Hui Chi Wai, CACC78/1999, unreported, cited by Hartmann J in Yau Kwong Man (No.1) at 468 :

“…. is not designed to provide a sentence of imprisonment in lieu, as it were, of a life term.  It is designed to draw from the court a minimum term of years which the convicted person must actually serve before release, remembering however, and this is an important caveat, that it is inherent in the phrase ‘minimum term’ that the court does not say that that is the stage at which the convicted individual is to be, or even should be, released.  Those who are entrusted with the function of monitoring prisoners serving indeterminate sentences, or long term determinate sentences, and with making recommendations, where appropriate, for release or for the conversion of indeterminate terms to determinate ones, may very well in individual cases decide against the prisoner’s release at the end of the minimum term and, indeed, may decided that release is not permissible for some considerable time beyond that date, or indeed at all.

….

….  the scheme there described [the scheme under the Sentence Review Ordinance], as well as the common sense of the matter, rather suggests that when deciding upon a minimum term under s. 67B, what the court is primarily addressing is the punitive and deterrent element dictated by the offence and the current circumstances of the offender.”

20. Hui Chi Wai was concerned with discretionary life sentences and not detention at HMP.  Also it did not deal with the basis upon which a person who had served the minimum term could continue to be detained.

21. The concept of a minimum term was similar to the concept of the tariff in England.  Indeed, since the Practice Statement (Crime : Life Sentences) dated 31 May 2002 at [2002] 1 WLR 1789, the term “tariff” was no longer used in England “because it has been commonly been misunderstood.  The present statement refers instead to ‘minimum term’ to make it clearer that, even when released, the offender has not served his sentence, which continues for the remainder of his life”. 

22. Insofar as the tariff in England (or minimum term after 31 May 2002) also represented the punitive and retributive element in the sentence, it is indistinguishable from the minimum term in Hong Kong.  However, as Hartmann J said in Yau Kwong Man (No.1) :

“78.     …. In the United Kingdom, policy statements by a number of Home Secretaries crystallized the position, the presumption being that a prisoner must be released once the tariff period is served provided he presents no continuing risk. …”

There was no similar statements in Hong Kong.  I shall have to consider whether there is any relevant difference between the position in Hong Kong and the United Kingdom.  And, if so, the significance of such difference.

23. In the United Kingdom, since the Criminal Justice Act 1991, a discretionary life prisoner was entitled to be released if his detention was no longer necessary for the protection of the public :

“34(4)   The Board shall not give a direction under subsection (3) above with respect to a discretionary life prisoner unless—

….

             (b)   the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

In other words, protection of the public (dangerousness) was the only reason for continued detention after the tariff period.  However, the Criminal Justice Act 1991 assimilated detention at HMP with mandatory life imprisonment, see R. v. Secretary for State for the Home Department, ex parte Venables [1998] AC 407 at 533E.  It was argued on behalf of the Home Secretary in the House of Lords that release after service of the minimum term by a detainee at HMP was not subject only to dangerousness.  However, that argument was rejected by a majority of their lordships.

24. As a result of the decisions of the European Court of Human Rights, such as Hussain v. U.K. (1996) 22 EHRR 1, the Crime (Sentences) Act 1997 was enacted.  Thereafter, in the case of discretionary life sentence or detention at HMP, the Secretary of State was obliged to order release on licence after the minimum term had been served and the Parole Board has directed release.  Effectively, the Review Board was required to direct release if detention was no longer necessary for the protection of the public.

25. Since I am dealing with detention at HMP, it is necessary that I should understand the nature of the sentence of detention at HMP.  Lord Hope in ex parte Venables said :

“… the sentence of detention during Her Majesty’s pleasure is a separate and distinct sentence from that of life imprisonment.  It recognizes the special characteristics of the younger offender, and especially of the child offender.  There is built into the sentence a measure of leniency in view of the age of the offender at the time of the offence.  The measure of that leniency is that, in his case, in the working-out of the sentence punishment and welfare, present and future, are both equally relevant.  He is to be detained without limit of time, but expressly on terms which do not deprive him of his liberty for the rest of his days.  I agree with Lord Woolf M.R., ante, p. 426C-D that the discretion as to release which is to be exercised by the Secretary of State in the case of these two sentences is a different one.  In the case of the mandatory life sentence it is a discretion to bring custody to an end.  In the case of the detainee during Her Majesty’s pleasure, it is a discretion to continue custody for as long, but only for as long, as this is appropriate. ….”  532A-C

Lord Steyn said :

“An order for detention during Her Majesty’s pleasure involves merely an authority to detain indefinitely.  That means that the Home Secretary must decide from time to time, taking into account the punitive element, whether detention is still justified.  Life imprisonment involves an order of custody for life.  That means, as the Home Office has interpreted the sentence of mandatory life imprisonment, that the Home Secretary must consider whether and when release is justified.  These are obviously wholly different approaches.”  522H-523A

“His (the Home Secretary) legal premise is wrong: the two sentences are different.  A sentence of detention during Her Majesty’s pleasure requires the Home Secretary to decide from time to time, taking into account the punitive element, whether detention is still justified.”  518H

“… Once the minimum period fixed for retribution and deterrence has been satisfied, and provided that he is no longer a risk, a prisoner serving a discretionary life sentence is entitled to be released: section 34 of the Criminal Justice Act 1991. ….” 520E

“.… Detention during His Majesty’s pleasure, the term of sentence selected by Parliament in 1908 for children convicted of murder, was intended to involve (subject to matters of the risk of releasing the individual) a less severe form of sentence than imprisonment for life.  After all, a sentence of life imprisonment involves an order that an individual be imprisoned for life.  By contrast a sentence of detention during Her Majesty’s pleasure merely authorises detention of an individual for life.”  (emphasis supplied)  521H

“…. I will assume that the Home Secretary was entitled to apply a ‘practice’ that a prisoner serving a mandatory life sentence has forfeited his life to the state and that the ‘presumption’ must be that the prisoner will spend the rest of his days in prison.  But in my judgment this practice is plainly not legitimate in respect of the different sentence of detention during Her Majesty’s pleasure.  Section 53(1) is based on the premise that, to some extent, children are less accountable for their actions than adults.  Subject to continued detention for reasons of risk, a section 53(1) was intended to be a more merciful punishment than life imprisonment: see Lord Woolf M.R.’s observation on this point, ante, p. 426B-C. ….”  524E

Lord Browne-Wilkinson who was part of the majority put the matter in this way at 498F :

“…. Therefore, in relation to a person sentenced to be detained during Her Majesty’s pleasure the Secretary of State is not dealing with a sentence of the same kind as the mandatory life sentence imposed on an adult murderer, the duration of which is determined by the sentence of the court and is for life.  In cases of detention during the Majesty’s pleasure the duty of the Secretary of State is to decide how long that detention is to last, not to determine whether or not to release prematurely a person on whom the sentence of the court is life imprisonment.” 

26. The difference between the two sentences was also underlined by the European Court of Human Rights in Hussain.  There, it was noted :

“51.     The Commission notes that sentences of detention at Her Majesty’s pleasure are imposed automatically in the cases of murder by juveniles (under 18 years).  To that extent, the detention has a similarity with the mandatory sentence imposed in respect of murder by adults.  The adult sentence however is fixed at the term of life: detention at Her Majesty’s pleasure is on its face indeterminate.  Though impliedly a sentence of detention may authorize detention for life, the Commission considers that a distinction must be drawn between a sentence which is fixed by the judiciary at a maximum of life leaving a discretion to the executive as to whether the individual is released earlier and a sentence which has no fixed term and the limits of which are to be defined by the executive.”

27. In Yan Kwong Man (No.1), Hartmann J recognized and accepted the nature of detention at HMP as explained by the majority in ex parte Venables, paras.52 and 53.  I believe I am bound to proceed on the basis that, after the minimum term has been served, continued detention is required to be justified.  As Lord Steyn said the sentence required the Home Secretary to decide from time to time “whether detention is still justified” 518H.

A sentence in two parts — determination a judicial function?

28. In my opinion, a sentence to be detained at HMP may be regarded as a sentence in two parts.  The first, the minimum term, satisfies the punitive and retributive part of the sentence.  A prisoner might be released at the end of the minimum term, but not necessarily so.  He might be continued to be detained “for as long, but only for as long, as this is appropriate ….”, 532C, per Lord Hope of Craighead.

29. It is now settled in the United Kingdom that Article 5(4) requires both parts of the sentence to be determined by a court.  It may be that the Parole Board under the Crime (Sentence) Art 1997 could be regarded as a court for this purpose.  I believe, and it is apparent from the Brief to the LegCo Panel on security and the LegCo Brief referred to in paras.8 and 9 above, that the HKSAR government intended that in Hong Kong the determination of both parts of the sentence should comply with Article 5(4).  However, Yau Kwong Man (No.1) shows that the old section 67C failed to achieve its purpose in so far as the first part of the sentence (the minimum term) was concerned.

30. In Yau Kwong Man (No.1), Hartmann J was concerned with the constitutionality of the determination by the Chief Executive of the minimum term.  He was of the view that :

“63.     …. The fixing of a period of time that must be served by an offender to extinguish the retributive and deterrent elements of his sentence is an exercise in determining punishment for that individual offender.” 

31. Hartmann J was of the view that the determination of the length of sentence for a criminal offence was essentially a judicial function.  In rejecting the submission that the determination of sentence was an exercise of the royal prerogative of mercy, he cited the words of Lord Diplock in R. v. Hinds [1977] AC 198 at 228F :

“In contrast to this the function of the Review Board ... is not to remit in the case of a particular individual a custodial sentence whose duration has already been fixed by law or by a judge in the exercise of his judicial functions, but itself to fix the duration of a sentence which has not previously been fixed by anyone else. This, in their Lordships' view, is a power of a wholly different character from that of the prerogative of mercy.”

Lord Diplock also said at 226G :

“In this connection their Lordships would not seek to improve on what was said by the Supreme Court of Ireland in Deaton v. Attorney General and the Revenue Commissioners [1963] I.R. 170, 182-183, a case which concerned a law in which the choice of alternatives was left to the executive.”

“There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case.  The prescription of a fixed penalty in the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case.  The legislature does not prescribe the penalty to be imposed in an individual citizen’s case; it states the general rule, and the application of that rule is for the courts …. the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the executive….”

32. In Hinds, the Privy Council was concerned with the Gun Court Act 1974 of Jamaica.  By that Act, a Gun Court was established and that section 8 prescribed a mandatory sentence of detention for specified offences, “during the governor-general’s pleasure”.  A review board which was a non-judicial body was also established to make recommendation to the governor-general regarding the duration of the detention.  At issue before the Privy Council was whether under the constitution the Parliament could transfer from the judiciary to the Review Board, which was admittedly a non-judicial body, a discretion to determine the severity of punishment to be inflicted.  It held that it was unconstitutional.

33. Hartmann J held that under BL 80, the fixing of the minimum term was a judicial function and that could not be exercised by the Chief Executive even though the Chief Executive would have the benefit of the Chief Justice’s recommendation.

34. However, Hartmann J was not required to determine whether the decision to continue detention was also an exercise of judicial function.  Nor was the learned judge required to consider in any depth, under what basis a defendant could continue to be detained after the expiry of the minimum term.

35. In my opinion, the determination of the second part of this two-part sentence is also essentially a judicial function.  In this context, I note the lack of power of the Review Board to determine the sentence of a person detained at HMP or to order the unconditional release of a prisoner.  Moreover, the Chief Executive might decline to accept a section 15(1)(a) recommendation.  No argument has been addressed to me in that regard.  Indeed, Mr Harris wished me to proceed on the basis that determination of the second part of the HMP sentence under the Ordinance was not inconsistent with BL 80 or Article 5(4) BOR.  I appreciate Mr Harris did not wish his client to fall into a limbo which might be the result otherwise.  As I have said the Review Board was intended to come within the meaning of court under Article 5(4), which it was said “does not necessarily mean a court of law” (see para.8 above).  Even if Article 5(4) does not require a court of law, as to which, I express no view, BL 80, requires judicial function to be preformed by the judiciary, and Chapter 4, Section 4 of the Basic Law has to be complied with.  Not without hesitation, I am prepared to assume that the Review Board could be a “special” court under BL 81, although its members were not appointed in accordance with BL 88.  I am prepared so to assume because it would make little difference to the outcome of this application.  Of course, if the Review Board were to be considered as a court, and more pertinently, as exercising a judicial function, it might have implication on the procedures which it ought to adopt.

Basis for continued detention

36. I think I should turn to consider on what basis a prisoner who has served the minimum sentence could continue to be detained.  Obviously, dangerousness would be a valid reason.  Again, confining myself to detention at HMP, I have to ask whether continued detention could be justified on any other ground, and if so, what they are.

37. Mr Coleman who appeared for the Review Board, submitted that it is obvious from sections 2 and 8 of the Ordinance that in reviewing the sentence of a detainee at HMP, the Review Board was not solely concerned with dangerousness.  He submitted that the Review Board was entitled to consider whether the detainee had been fully rehabilitated.  He argued that, even if the Review Board should come to the conclusion that the applicant no long posed a danger to the community, his continued detention could be justified on the basis that he had not been fully rehabilitated.

38. I have said that continued detention must be justified.  The burden is not on the prisoner to prove absence of justification.

39. In R. v. Lichniak [2002] All ER 1122 at 1129, Lord Bingham said :

“…. I doubt whether there is in truth a burden on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the board to consider all the available material and form a judgment. ….”

There, Lord Bingham was dealing with mandatory life sentences.  In the case of detention at HMP, I believe the prisoner is entitled to no less.  In other words, the burden is not on the prisoner to justify his release.  As I have said, the Review Board should proceed on the basis that the continued detention of a prisoner after he had served the minimum term must be justified.  This is plain justice.  Article 5(1) BOR requires that : “No one shall be subjected to arbitrary arrest or detention.”  Detention without good reason would be arbitrary detention.  This is so, whether or not the decision to continued detention is a judicial function which, under BL 80, could only be performed by the judiciary, or, it is a function which the Chief Executive could perform as an executive act (however, not an act of mercy under BL 48(12).

40. Mr Coleman submitted that :

“It is not the Board’s task merely to find the presence or absence of a single characteristic, but rather it must assess the individual prisoner’s progress to rehabilitation and the possibility of a successful reintergration into the community (balancing the interests of the individual against the interests of the community, such as risk of reasonably foreseeable harm). 

Further, the nature of the sentence of detention and Executive’s discretion requires the Board …, to take into consideration the development, progress and welfare of the prisoner.”

I accept that if a prisoner’s lack of progress to rehabilitation gives rise to risk of reasonably foreseeable harm that is an important and relevant consideration.  However, the decision to continued detention would be based on assessment of dangerousness and not on lack of progress towards rehabilitation as such.  Mr Coleman relied on sections 2 and 8 of the Ordinance.  I doubt if he can derive much assistance from section 8.  Section 8(a), (b) and (c) cannot support continued detention after the minimum term.  Section 8(d) relates to dangerousness and does not support continued detention for any other reason.  I should also mention that insofar as section 8 of the Ordinance refers to “early release”, that is likely to confuse in the case of a prisoner sentenced to be detained at HMP.  I appreciate that the Ordinance covers other kinds of sentences in relation to which “early release” is an appropriate description, but to use the same expression in relation to detention at HMP is likely to divert attention from the true nature of the exercise.  Mr Coleman relies on section 2 and Regulation 2 and drew my attention to the “matters which may be taken into account”.  Mr Harris drew my attention to Prison Law, 3^rd Edition, Livingstone & Others and the 12 factors which the Parole Board was required to take into account when making a recommendation about Parole risk would defend on dangerousness.  They are similar though not identical to the matters set out in the Schedule.  Many matters in the Schedule may be related to dangerousness and do not in themselves support the view that rehabilitation (divorsed from dangerousness) is a ground for continued detention.

41. In para.22 above, I referred to the policy statements by Home Secretaries regarding release when the prisoner presents no continuing risk.  However, it is obvious from the Home Secretaries’ various statements that they did not accept that subject to dangerousness a person detained at HMP was entitled to be released after serving the tariff.  As ex parte Venables showed, the Home Secretary regarded detention at HMP as if it were mandatory life imprisonment.  I believe that one should not presume that the Home Secretaries’ policy, that in the case of a discretionary life sentence there would be no continued detention except for dangerousness, was based on the liberal tendencies of the successive Home Secretaries.  The policy might well have been based on the fact that if continued detention had to be justified, dangerousness was the only basis upon which it could be justified.  I do not believe I should take the Home Secretaries’ policy at face value.  Rather, I would look behind it to its underlying rationale.  As Thynne Wilson & Gunnell v. U.K., 13 EHRR 666 made clear, the rationale was based on the nature and reason for a discretionary life sentence.  There, for example, in the case of Wilson, he was sentenced to life imprisonment as opposed to a determinate term : “to protect [the public] from people like you.”, 670.  In this context, one notes that the tariff or minimum term represented the punitive or retributive part of the sentence, what remains after the tariff or minimum term must be justified, if at all, by some other reason.  I understand that some crimes may be so heinous that punishment or retribution requires the minimum to be fixed at life or such a long term as makes no difference.  Be that so.  But, in my opinion, beyond the minimum term, punishment and retribution are irrelevant.  Punishment and retribution are extinguished by the minimum term.

42. I think sentencing principles might also throw some light on the matter.  According to Lord Bingham CJ :

“Courts shall always bear in mind that criminal sentences are in almost every case intended to protect the public, whether by punishing the offender or reforming him, or deterring him and others, or all of these thing.”

(See R. v. Howells [1999] 1 All ER 50 at 54d.)

43. In the words of Lawton LJ :

“…. the classical principle of sentencing …. are summed up in four words: retribution, deterrence, prevention and rehabilitation.  Any judge who comes to sentence ought always to have those form classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case with which he is dealing.”

(See R. v. Surgeant (1974) 60 Cr. App. R. 74, 77.)

44. “There are underlying tensions between deterrence and retribution on the one hand, and reformation and compensation on the other.”

(See Sentencing in Hong Kong, 4^th Edition, 61.)

45. An example of this tension can be seen in the judgment of the Supreme Court of South Australia sitting en bavc R. v. Ciccone (1974) 7 SASR 11 October, 113 :

“In this appeal and in other appeals during this session, we have been addressed by counsel as if rehabilitation was the overriding aspect of all sentencing.  This is of course not so, and we deal with the matter here so that Courts of Criminal Appeal will not be troubled with similar arguments in future.  The criminal law is intended for the protection of the public against criminals, for the punishment of those who commit offences, and the deterrence of others who might be minded to offend in like manner.”

46. There is support for the view that lack of rehabilitation, though unrelated to dangerousness, might be a sufficient reason for continued detention.

47. In Yau Kwong Man (No.1), Hartmann J said :

“…. Under the Sentences Review Ordinance, however, the legislature has determined that a far broader range of matters must (or may) be taken into account other than the single issue of risk. Those other matters canvas what I may loosely call the assessment of the rehabilitation of the offender.”

48. In HKSAR v. Cheung Lai Man [2004] 2 HKLRD 473, Yeung JA said, Obiter, when dealing with the argument that in considering the proper minimum term, the court should ignore the possible remission for industry and good conduct :

“100.    The applicant pleaded guilty to the charges and in the normal course of event, he should be entitled to a one-third discount.  If the term of imprisonment imposed on the applicant is not a minimum term, he also has the opportunity to gain a maximum of one-third discount for industry and good conduct under r.69 or the Prison Rules.

….

103.    A minimum term is just the minimum period of detention.  It does not mean the accused will be released at the expiry of the minimum term even if he no longer poses any danger to society.

104.    In deciding if an accused should be released after the expiry of the minimum term, the relevant authorities are entitled to have regard to the fact that in setting the minimum term, the sentencing Judge already has regard to the possible remission for industry and good conduct.”

49. What does rehabilitation mean?  What is its role in sentencing an offender?  I have already noted the underlying tensions between punishment and rehabilitation.  Rehabilitation is often urged to temper the punishment.

50. In R. v. E.; ex parte Attorney General of Queensland [2002] QCA 471 on the question of sentencing of juveniles, Williams JA said :

“[35]       In GDP the New South Wales Court of Criminal Appeal advised both that considerations of general deterrence should not be ignored completely when sentencing young offenders, and that rehabilitation be the primary aim (said there in relation to an offenders who was then 16 when being sentenced).

[36]    The analysis of the relationship of rehabilitation of an individual juvenile offender and protection of the community was put slightly differently by the West Australian Court of Criminal Appeal in C (a child) (1995) 83 a Crim R 561 in that matter Pidgeon J wrote at (564) that:

‘In a Children’s Court, deterrence plays a different role.  The prime factor is rehabilitation, which would temper deterrence to a degree.  As the principles are completely different, I do not consider the correct answer can be reached by commencing with an adult tariff and then discounting it.’

‘Much the same view was expressed by Wallwork J, who cited in his judgment earlier observations of the WA Court of Criminal appeal in B (a child (1995) 82 A Crim R 234 at 244 where that court wrote:

‘It is fallacious to regard the rehabilitation of an individual offender as a consideration separate and apart from, and somehow inimical to the protection of the public.  The two things are intrinsically connected.  The criminal justice system aims to rehabilitate offenders (particularly young offenders), because rehabilitation removes the danger to the public from one if its (previously) errant members.’”

51. In ex parte Venables, it was held that the Secretary of State was wrong to disregard rehabilitation.  There, as I read the judgments, it is clear that the Secretary of State was required to have regard to the welfare of the juvenile so that in a suitable case, a shorter sentence than one fixed with reference only to punishment retribution or risk might be served.  I do not think it was contemplated that the lack of rehabilitation (not related to dangerousness) of the prisoner might lead to a longer term of imprisonment than one based solely on punishment retribution and risk.

52. In the Shorter Oxford Dictionary, in page 2516, the following appears under Rehabilitation :

“1.   Orig., the formal restoration of a person’s privileges, work, possessions, etc.; reinstatement in a person’s position.  Now usu., re-establishment of a person’s reputation, vindication of character.  1.15.

2a.   The action of restoring something to a previous (proper) condition or status.  M.19.

….

 b.  … Restoration of a disabled person, a criminal, etc., to some degree of normal life by appropriate training etc., M20.”

53. In the Rehabilitation of Offenders Ordinance, the word “rehabilitation” is used in the first sense.  The objective of rehabilitation of offenders in prison is presumably used in the 2b sense.  Article 6(3) BOR provides that “the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”  That relates to the treatment of offenders whilst serving their sentence.  “Sometimes the word ‘rehabilitation’ is used instead of ‘reform’, although it is better to reserve ‘rehabilitation’ for efforts to make it easier for offenders not to reoffend : e.g. by finding them jobs.”  Sentencing Theory, Law & Practice, Walker & Padfield, 2^nd Edition, 7.2. I accept that detention for rehabilitation or reform might be permitted under certain circumstances, e.g. detention at a training centre.  But that is “in lieu of any other sentence” section 4(1) Training Centre Ordinance, Cap.280.  It might also be regarded as a sentence whereby a person is “punished” by detention under a training regime.

54. It might be useful to look further into the concept of dangerousness as a reason to continue detention and see whether it might throw light on what might be valid reasons for continued detention.

55. I note section 8(d) requires the Review Board to have primary regard to : “the need to protect members of the committee from reasonably foreseeable harm that could be inflicted by the prisoner as a result of having been released from detention early”.  This is to be compared with the language of, for example, section 34(4)(b) of the Criminal Justice Act 1991 where the Review Board was required to be satisfied : “that it is no longer necessary for the protection of the public that the prisoner should be confined”.  In neither case was it made clear what was the relevant risk or harm which the community should be protected against. 

56. R. v. Secretary of State for the Home Department ex parte Benson [1989] C.O.D. 329, a decision of the English Divisional Court, was a case where the Parole Board had recommended release but the Secretary of State refused to act on the recommendation.  It was in that context that Lloyd LJ said, in connection with the question of risk :

“… Dangerousness is of course an elusive quality and difficult to forecast.  It is not made easier by substituting risk as a synonym.  Risk was the word used by the Secretary of State in his statement of 30^th November, 1983.  But there is a potential ambiguity; risk of what?  Not obviously risk that the prisoner will be a nuisance or engage in petty crime.  The matter can be tested in this way.  Suppose when the trial judge passed sentence he had had before him a medical report which said that Mr Benson was in no way dangerous.  Suppose also that he had throughout his adult life been a persistent petty thief.  The judge would have sentenced Mr Benson to a determinate sentence of, let us say, 12 years for the attempted grievous bodily harm with intent; after eight years Mr Benson having earned remission would have been released.  There could have been no question of keeping him in prison just because he was likely, even certain, to return to his life of petty crime.

If risk to the public is the test, risk must mean risk of dangerousness.  Nothing less will suffice.  It must mean there is a risk of Mr Benson repeating the sort of offence for which the life sentence was originally imposed; in other words risk to life or limb.  This is to say no more than was said by the Lord Chief Justice Lord Lane when he was giving guidance on the discretionary life sentence in R v Wilkinson (EJ) 5 Cr App R (S) 105, 108:

‘It seems to us that the sentence of life imprisonment, other than for an offence where the sentence is obligatory, is really appropriate and must only be passed in the most exceptional circumstances.  With a few exceptions, of which this case is not one, it is reserved broadly speaking as for offenders who for one reason or another cannot be dealt with under the provisions of the Mental Health Act yet who are in a mental state which makes them dangerous to the life or limb of members of the public.  It is sometimes impossible to say when that danger will subside, therefore an indeterminate sentence is required so that the prisoner’s progress may be monitored by those who have him under their supervision in prison and so that he will be kept in custody only so long as public safety may be jeopardized by his being let loose at large.’

I would only add that when Lord Lane refers to danger to life or limb he must also have been intending to include as a proper use for the discretionary life sentence the non violent but persistent rapist.”

Benson was sentenced to life imprisonment for the offence of attempting to cause grievous bodily harm with intent.  Although ex parte Benson was decided prior to the Criminal Justice Act 1991, the same approach continued to be applicable to discretionary life sentences under section 34(4)(b) of the Criminal Justice Act 1991.

57. In Stafford v. The United Kingdom [2002] 35 EHHR 1121 a decision of the European Court of Human Rights, the applicant was sentenced to a mandatory life imprisonment for murder.  He was convicted in January 1967 and had been released on licence in April 1979.  The licence required him to cooperate with his probation officer and to remain in the United Kingdom unless his probation officer agreed to his travelling abroad.  Soon after his release, he left the United Kingdom in breach of his life licence and to live in South Africa.  In September 1980 his licence was revoked and thereafter he was continuously unlawfully at large.  In April 1989, he was arrested in the United Kingdom for possession of a false passport for which he was fined.  He remained in custody, however, due to the revocation of the life licence.  In March 1991 he was again released on life licence.  Then in July 1993 he was arrested and remanded in custody on counterfeiting charges.  On 19 July 1994 he was convicted on two counts of conspiracy to forge travellers’ cheques and passports and sentenced to six years’ imprisonment.  In September 1994 the Parole Board recommended revocation of the applicant’s life licence.  In 1996 the Parole Board recommended his release on life licence which was rejected by the Secretary of State by letter of 27 February 1997 to the applicant in the following terms :

“… [The Secretary of State] notes with concern the circumstances surrounding your two recalls to prison … Both these occasions represent a serious and grave breach of the trust placed in you as a life licensee and demonstrate a lack of regard for the requirements of supervision.  Against this background the Secretary of State is not yet satisfied that if released on licence for a third time, you would fully comply with the conditions of your life licence.  He notes that you have spent the past 3 ½ years in closed prison conditions and therefore have not on this occasion followed the normal progression of life sentence prisoners.  This involves a period in open conditions, giving you the opportunity to demonstrate sustained good behaviour and responsibility in a less secure environment; and to experience the full range of resettlement activities in preparation for release.

For these reasons, the Secretary of State considers that you should be transferred to an open prison for a final period of testing and preparation.  Your next formal review by the Parole Board will begin 2 years after your arrival there.”

58. The Secretary of State acknowledged in the proceedings that there was not a significant risk that the applicant would commit further violent offences, but asserted that he could lawfully detain a post-tariff mandatory life prisoner solely because there was a risk that he might commit further non-violent imprisonable offences.  On 1 July 1997, but for the revocation of his life licence the applicant would have been released from prison on expiry of the sentence for fraud.  The applicant’s challenge for judicial review of the decision of the Secretary of State was unsuccessful, the House of Lords dismissed the applicant’s appeal.  In doing so Lord Steyn held that section 35(2) of the 1991 Act conferred a wide administrative discretion on the Secretary of State to decide upon the release on licence of mandatory life prisoners and that there was no fundamental common law of principle of retributive proportionality which restraining him from detaining a mandatory life prisoner by reference to a risk that he may in future commit a serious but non-violent offence.  He expressly repeated Lord Bingham’s concern that the imposition of a substantial term of imprisonment by exercise of administrative discretion was hard to reconcile with ordinary concepts of the rule of law.  Under the 1991 Act in relation to persons serving a mandatory sentence of life imprisonment, the Secretary of State decided the length for the tariff and he was entitled to depart from the judicial view. 

59. Section 35(2) of the 1991 Act provides :

“If recommended to do so by the [Parole] Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.”

60. On 27 July 1993 the Secretary of State made a statement in Parliament explaining his practice in relation to mandatory life prisoners.  The statement emphasised that before any mandatory life prisoner is released on life licence :

“… will consider not only (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release.  This means that [he] will only exercise [his] discretion to release if [he is] satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice.”

61. Against such background, the European Court of Human Rights held that :

“There was no power under domestic law to impose indefinite detention on him to prevent future non-violent offending.  If there was evidence that the applicant was conspiring to commit any such offences, a further criminal prosecution could have been brought against him.  The court cannot accept that a decision-making power by the executive to detain the applicant on the basis of perceived fears of future non-violent criminal conduct unrelated to his original murder conviction accords with the spirit of the Convention, with its emphasis on the rule of law and protection from arbitrariness.”

62. If dangerousness were so circumscribed, then in the case of a discretionary life sentence or detention at HMP, is it right that the so-called “assessment of the rehabilitation of the offender” (not related to dangerousness) could be a valid reason for continued detention?  I think not.  I do not believe the fact that the prisoner had not been fully rehabilitated would be a good reason to detain him.  It cannot be that if a prisoner is idle and would live on welfare if released, he could be continued to be detained for that reason.  Nor that he was thought to be likely to resort to petty crime.

63. If I am wrong on this, and that lack of rehabilitation is a good reason, the lack of rehabilitation (though not related to dangerousness) must be sufficiently serious to justify detention.  It is difficult to say what degree of lack of rehabilitation would be sufficient.  I am inclined to the view that the circumstances must be truly exceptional before continued detention could be justified on this basis.  That being the case, any decision based on lack of rehabilitation must be clearly demonstrated.  I should add that it has not been suggested that there were some other valid reasons for continued detention.  I need not decide (although I cannot imagine any) whether there may be other good reasons.

The decisions

64. I turn to consider the decisions.  I consider them against the background of my view of the nature of the sentence of detention at HMP, the nature of the decision to continue to detain him after the minimum term, and the basis upon which he could legitimately be detained thereafter.  Such background is relevant to what might be required of the decisions and the decision-making process.

65. What is the degree of a scrutiny that should be applied to the decision of the Review Board.  I have been treated to helpful and interesting submissions.  This is a developing area of the law.  Thus, I will go straight to the latest decision on the subject referred to me, namely R. (ProLife Alliance) v. British Broadcasting Corporation [2004] 1 AC 185, a decision of the House of Lords.  Lord Walker of Gestingthorpe, at para.139, said :

“So the court’s task is, not to substitute its own view for that of the broadcasters, but to review their decision with an intensity appropriate to all the circumstances of the case.”

66. Here, I am concerned with the legality of the continued detention of the applicant.  It concerns his liberty.  A matter which, in my opinion, requires an intense review.

67. The concluding paragraph in the extracted minutes of the Review Board held on 26 September 2003 is set out below :

“Members noted that the prisoner had served just over 15 years in prison.  Taking into consideration the gravity of Yau’s offence, his average and fluctuating institutional performance and the Clinical Psychologist’s advice that his risk of violent recidivism was moderate, members unanimously agreed that no recommendation in respect of his sentence should be made at this review and that no Special Assessment Report should be called for in his next review in the fourth quarter of 2004 under the normal review schedule.”

68. I set out below the concluding paragraph of the extracted minutes of the Review Board’s meeting held on 9 January 2004 :

“Members perused the latest comments and opinion made by Yau’s private specialist psychiatrist, which were basically the same as those considered by the Board on 36.9.2003.  Members noted that Yau had committed a very serious offence at the age of 16 and that he had served 16 years in prison.  However, his overall performance in prison was fluctuating, with room for improvement in his institutional behaviour.  Members concurred that his institutional performance, rather than the comments of the Clinical Psychologist, was the main reason of the Board’s recommendation on his sentence.  After further discussion, members unanimously agreed to maintain the same decision on Yau’s sentence as made at the last quarterly meeting on 26.9.2003.  The Secretary will inform Yau’s lawyer of the Board’s above decision.”

69. There is also a synopsis prepared by the secretary to the Review Board.  I am told by Mr Coleman that this was prepared by the secretary but not seen or approved by the Chairman :

“4.   Sentence review by the Long-term Prison Sentences Review Board

On 26 September 2003, the Board reviewed the prisoner’s sentence in accordance with the Long-term Prison Sentences Review Ordinance (Cap. 524).  During the review of his sentence, members noted the prisoner’s performance as reported by the Prison Chief Superintendent, and the comments of the Clinical Psychologist and the Visiting Psychiatrist in paragraph 3 above, the written representations made by the prisoner’s lawyer on his behalf, together with the letters from his family members and friends, and a bundle of other documents/reports/court judgment.  Members also perused an assessment report submitted by a private specialist psychiatrist, who opined that the prisoner’s present risk of further offending violent crimes was very low, particularly if his release were on condition of post-release supervision.  Members considered that the prisoner had committed a very serious crime and that his institutional performance was fluctuating over the years.  Having carefully considered all reports, documents and representations that were available before the Board and all relevant factors, the Board unanimously agreed not to make any recommendation on his sentence at his review.”

70. The September decision suffers from the fact that the applicant had not been given sufficient time to respond to the clinical psychologist’s report.  Section 13(2) of the Ordinance provides :

“The Board must ensure that, not less than 14 days before the date on which a review to which this section applies is to begin, the prisoner concerned has been provided with a copy of all relevant material to be considered by the Board in connection with the review.”

71. The report was received on 17 September 2003 and hence less than 14 days before the hearing.  For this reason alone, I believe the September decision must be quashed.

72. But the September decision had been superseded by the January decision.  The January decision was made because the applicant submitted further evidence after the September decision.

Inadequate reasons

73. An important ground of complaint is that the reasons were inadequate.  I have been taken through the relevant authorities on the subject by both Mr Harris and Mr Coleman.  I think it is necessary for me just to refer to De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5^th Edition and to the principles summarised in paras.9-049 to 9-051.  I think the reasons should be sufficiently detailed so as to make clear to the applicant why the tribunal decided as it did.  The reasons given should be intelligible and must adequately meet the substance of the arguments advanced.  The reasons given should broadly inform as to the reason why a decision has been reached.  How much is required would also depend upon the particular circumstances and the nature of the duties which a tribunal is called upon to determine.

74. It should be noted although the two decisions were defended on the basis that lack of or inadequate rehabilitation (though not related to dangerousness) could be a sufficient reason for continued detention, neither decision referred in terms to rehabilitation.  Nor did they expressly or by clear implication say that the reason for continued detention (the result of no favourable recommendation by the Review Board) was dangerousness. 

75. By the time of the January review, the Review Board was dealing with an applicant who had served 16 years.  All his co-defendants had been released.  During his imprisonment, the applicant had achieved some academic success and that his conduct was generally good.  In such circumstances, with great respect, I regard the reasons given to be inadequate.  It is not clear from the reasons what were the reasons for the Review Board’s decision.  Was it dangerousness?  If so, I believe it was duty bound to say so.  If not, and it seems not (and Mr Coleman defended the decisions on the alternative basis that they were not), it should explain why, nevertheless, the applicant ought to be continued to be detained. 

76. At the time of the two decisions, as a result of Yau Kwong Man (No.1), there was no valid minimum term.  For that reason, the Review Board decided “that it would not take the minimum terms of the prisoners concerned into consideration when reviewing their sentences.”  Did it mean that the Review Board felt free to proceed on the basis that the applicant had not served the punitive and retributive part of his sentence yet?  If so, I believe that to be wrong. 

77. Although the minimum term had been declared unconstitutional.  The Review Board was aware that new legislation would be put in place to enable a minimum term to be determined judicially.  Under our system, it was inconceivable that when the minimum term came to be fixed judicially, the applicant could be required to serve a longer minimum term.  The new section 67C(6) has now so provided.

78. Mr Coleman made the point that section 8 did not require the Review Board to take the minimum term into consideration.  But the Ordinance had to be read together with old section 67C.  I do not believe the Review Board could refuse to make any recommendation on the basis that they did not regard the prisoner as having been adequately punished.  In other words, in my opinion, the Review Board was obliged to proceed on the basis that the punitive and retributive element in the sentence had been satisfied by the minimum term.

79. In the January decision the Review Board made the observation that the applicant had committed a very serious offence.  Was that meant to indicate dangerousness?  Or was it an indication that they regard the defendant as not having been sufficiently punished?  At page 123.7, it was said that his overall performance in prison was fluctuating, with room for improvement in his institutional behaviour.  Is this to be taken as a statement that he had not been fully rehabilitated?  If so, it should explain why the applicant’s conduct which fluctuated between “A-” to “B” to be such as to justify his discontinued detention.  Mr Coleman has explained the system for the assessment of performance.  It seems that even if the pass mark was taken as 60, the applicant had comfortably passed.  What did room for improvement mean?  Did it mean that he has to score “A” over an extended period before that would be regarded as sufficient.  If so, should not that be made clear?

80. Did “overall” refer to the entire period of imprisonment?  If so, why?  Did it include a reference to his disciplinary record?  If so, should they not explain why his disciplinary record would merit his continued detention?  His disciplinary record is set out below in full :

“Prisoner’s Registered No. 68902

Prison Record

Date	Offence	Punishment Award
10.03.1987 (remand)	You did engage in a scuffle with other inmates in C Hall day room.	28 days separate confinement 28 days forfeiture of privileges
19.04.1987 (remand)	You were searched and found in possession of one Chinese magazine while loss of privileges.	5 days separate confinement 5 days forfeiture of privileges
18.05.1987 (remand)	You did quarrel with another inmate despite being warned not to do so.	7 days separate confinement 7 days forfeiture of privileges
11.09.1987 (remand)	You did punch once on the head of another inmate with fist inside C Dining Hall.	28 days separate confinement 28 days forfeiture of privileges
19.09.1987 (remand)	Upon searching in the Reception Office, you were found in possession of 2 sticks of cigarette in your pocket.	28 days separate confinement 28 days forfeiture of privileges
29.01.1988	You did say in Cantonese “Fuck your mother, you are showing off” to the reporting officer.	14 days separate confinement 14 days forfeiture of privileges 14 days deprivation of earnings
05.02.1988	You did keep on whistling despite the repeated warning given by the reporting officer.	21 days separate confinement 21 days forfeiture of privileges
14.03.1988	You did shout out loudly in Cantonese.  “Fuck your mother’s stinky cunt, real dog cunt” when your cell was searched by the reporting officer.	28 days separate confinement 28 days forfeiture of privileges
22.11.1988	You did fail to have your shoes properly polished for morning inspection.	14 days separate confinement 14 days forfeiture of privileges 14 days deprivation of earnings
05.08.1993	You did assault another prisoner with your fists.	21 days forfeiture of privileges 21 days separate confinement
02.09.1993	You did shout out in Cantonese meaning “fuck your mother, stop talking” from your cell.	10 days forfeiture of privileges 10 days separate confinement
12.03.1994	You did tear a bed sheet into stripes without reasonable excuse.	3 days forfeiture of privileges 3 days separate confinement 21 days deprivation of earnings
27.04.1994	You did fight with other prisoners with fists.	14 days forfeiture of privileges 14 days separate confinement 14 days deprivation of earnings
17.06.1994	You did refuse to return to your assigned cell despite repeated warnings.	10 days forfeiture of privileges 10 days separate confinement
02.07.1994	You did refuse to return to your workshop despite repeated orders.	7 days forfeiture of privileges 7 days separate confinement 7 days deprivation of earnings
17.06.1998	You were searched and found from your cell no. 33 of G Hall I Ward 3 note books containing illicit gambling activities on soccer and 4 sheets of obscene pictures concealed in an envelope on 13.06.1998 at 0735 hrs.	7 days forfeiture of privileges 7 days separate confinement 14 days deprivation of earnings

From 22.4.2002 to 11.6.2002, prisoner was removed from normal association under PR 68 B & SO 65-04(2) as he claimed that he had enemies in the normal association.”

81. There is no evidence that had the remission rules applied such offences would have resulted in loss of remission, nor, if so, how much?  Indeed, Mr Coleman did not say that these offences justified continued detention per se.  Rather, it was suggested they pointed to lack of rehabilitation.  In the assessment of dangerousness, the degree of rehabilitation is no doubt a relevant consideration.  But that has to be related to dangerousness and not as an independent reason for continued detention.  And, if I am wrong on that, it had to be truly exceptional and clearly explained. 

82. The last disciplinary offence was on 17 June 1998.  Surely having regard to the nature of that offence it could not be the reason for his continued detention.  It would be Wednesbury unreasonable if it were so.  Was it because of his offence on 2 July 1994?  If so, should they not say so and explain?  I am bound to say I agree with Mr Harris that it is unreasonable even in the Wednesbury sense to continue to detain the applicant in 2003 because of his prison record.

83. The rehabilitation of Offenders Ordinance, although not relevant, is indicative of the desire to enable a person to turn over a new leaf.  Granted we are dealing with a convicted murderer, but does the fact that he had not offended since 17 June 1998 count for nothing?  If so, should that not be explained?  If his institutional performance was the main reason for the Review Board’s recommendation on his sentence, I believe it is incumbent on the Review Board to explain or identify the inadequacy in the applicant’s institutional performance and to explain why such institutional performance was a sufficient reason for his continued detention.

84. It was said in the January 2004 decision that : “His institutional performance, rather than the comments of the clinical psychologist, was the main reason of the Review Board’s recommendation on his sentence in September 2003.”.  It is not clear whether the clinical psychologist’s comment was a reason for the September decision.  Presumably it was no longer a reason in the January decision since by then the Review Board had the benefit of the cogent criticism of the clinical psychologist’s approach by Dr Sylvia Chen.  If not, I believe it was incumbent on the Review Board to explain why it preferred one report over the other.  I do not agree with Mr Coleman’s suggestion that the fact the tribunal members included a specialist in psychiatry and a psychologist meant than less reason need to be given, or that the court’s scrutiny should be less intense.  Of course, the court’s role on judicial review is limited and I must not substitute my view for the Review Board.  But, since we are concerned with liberty, reasons in plain language must be given.  It was said that the reasons might be short because the review was conducted on a periodic basis.  But the value of such periodic review would be much reduced if the applicant did not know what he had to do to improve the chances of his release from review to review.  I hasten to add that I am dealing with a review after service of the minimum term.

Oral hearing

85. I turn to consider another important ground relied on by Mr Harris namely that there was no oral hearing before the Review Board.

86. Section 12(5) gave the Review Board a discretion, but I am told that the Review Board had never exercised its discretion in favour of permitting legal representation or an oral hearing.  No reason has been given for the exercise of the discretion. 

87. Mr Coleman argued that the applicant was entitled to and did make written representation to the Review Board that those representations were detailed and full and professionally drawn by counsel who signed them and that they had been considered by the Review Board.  The Ordinance itself, of course, extinguished between a prisoner’s entitlement to appear by chosen representative and to make oral presentations between :

(1)     occasions when the Review Board might make an order amending or revoking a conditional release order, or amending a supervision order or suspending the operation of such an order, and

(2)     other reviews.

88. Mr Coleman has referred me to authorities which showed requirement for an oral hearing cannot be carved out of the common law.  In R. (on the application of Napier) v. Secretary of State for the Home Department [2004] DWHC 936, Mr Justice Goldring had to consider article 6 of the European Convention on Human Rights in the context of disciplinary measures in prison.  A penalty of 35 additional days remitted following a decision of the European Court of Human Rights.  The prisoner was charged with a disciplinary offence, his request for legal representation was refused and the governor found the charge proved.  However, notwithstanding the remission of the penalty of 35 additional days, the governor placed the applicant in a close supervision unit.  The issue was put in this way :

“Is it sufficient in order for the claimant to be awarded proper redress for the punishment of added days to be remitted or does article 6 also required the governors factual finding to be quashed so that it must thereafter be regarded as inherently unreliable for all purposes connected with the management of the claimant in prison?”

“Having regard to Strasbourg jurisprudence, a distinction had been drawn between the sanction of adding days and other sanctions available to a prison governor for the control of discipline.  Further, although the nature of the assault was more serious in the instant case, that was not of itself sufficient to cross the threshold from disciplinary to criminal.  It was therefore still necessary to consider the question of penalty.  In that regard, although the applicability of art 6 was to be considered by reference to the penalty that was liable to be imposed and that was actually imposed, a potential penalty of added days, without more, would not be sufficient to require an adjudication to be art 6 complaint.”

89. I was also referred to the judgment of the House of Lords in R. v. Secretary of State for the Home Department, Ex parte Doddy [1994] 1 AC 531 at page 560 where Lord Mustill said :

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

90. R. v. Parole Board, Ex parte Downing [1997] COD 149 (Lexis transcript) is a decision of the English Division of Court on 24 October 1996.  It was said at page 2 :

“In February 1996 in Hussain and Singh [1996] 22 ECHR 1 the European Court of Human Right s held that failure to accord a post-tariff HMP detainee a court hearing renders the United Kingdom in breach of Article 5.4 of the European Convention of Human Rights.”

“In consequence of that decision, the Home Secretary on 23 July 1996 announced that on or after 1 August 1996 such detainees will have an oral hearing.”  

However, that

“….announcement will apply to the applicant on his next review, but this, we are told, is likely to take place nine or 12 months later than if the present decision of January 1996 were quashed as a consequence of the application.”

91. In giving the judgment of the divisional court, Rose LJ said at page 6 :

“… In relation to discretionary lifers, the common law conferred on a prisoner the right in know the case against him, to see the relevant material and to make representations, but it does not confer any right to an oral hearing (see Wilson, Doody, and Mansell already cited, including in Mansell the passage, at 16A to C in the transcript, from De Smith Woolf and Jowell).  Such a right is the product of an executive decision pursuant to the rule-making powers conferred by s.32(5) of the 1991 Act.  There is no uncertainty or ambiguity in the common law such as to justify recourse to the European Convention or amplification of the common law by reliance on the Convention is impermissible (see the passages in Brind and Smith already cited by Mr Jay).  The degree of dangerousness is always the issue before the Parole Board in itself.  It cannot give rise to an entitlement to an oral hearing in every case.” 

92. But here I am dealing with the determination (which may be from time to time) of the second part of the applicant’s sentence.  In my opinion, this is the performance of a judicial function even if it could be performed by the Review Board.  Hence, unlike Goldring J, I am not dealing with a disciplinary matter, nor with the exercise of an administrative power which was what Lord Mustill had in mind.  Ex parte Downing was decided before the nature of the detention at HMP was explained by ex parte Venables, and of course, prior to the Human Rights Act of 1998.

93. But, if I am right that the sentence was in two parts, and that the determination of the second part is a judicial function (BL 80) or that Article 5(4) applies, I can see no reason why in Hong Kong we should require anything less than an oral hearing.  Indeed, a public hearing.  The determination of the minimum sentence is required to be conducted in public.  As Lord Diplock said in Hinds at 223E : “This general rule that trials should be in public entrenches in the Constitution of Jamaica a previously existing common law rule.”  I am not aware of any other sentencing function which is not required to be performed publicly or with the benefit of an oral hearing.  Mr Harris however, did not contend for a public hearing.  Nor did he argue whether it was appropriate that the “proceedings” before the Review Board should be inquisitorial.  I make no decision on the matter, but it seems to me to be at least arguable that the applicant was entitled to know prior to the hearing, on what basis, if that be the case, that his continued detention was to be justified.  The mere supply of “a copy of all relevant material to be considered by the Board in connection with the review” under section 13(2) might not be sufficient.  He should be told why having regard to them he should be detained.  I also doubt whether it would be appropriate for the Review Board to be both judge and prosecutor.  The applicant does not seek cross-examination of witnesses.  I say no more than that in a suitable case, cross-examination of witnesses might well be justified.  

Other grounds

94. Another ground relied on is one of legitimate expectation.  I have no doubt that the applicant had the legitimate expectation that under whatever new statutory regime which might be enacted, he would not be required to serve a minimum term higher than that was fixed under the old section 67C.  There has been borne out by the subsequent legislation.  However, this does not answer the question whether after the service of the minimum term the applicant was entitled to be released.

95. Ground 5 refers to wrongful reliance on prison discipline infractions.  The issue here is not simply whether the applicant’s conduct and discipline in prison was a relevant matter to be taken into account by the Review Board.  I have no doubt that they might be taken into consideration, see, for example, item 13 in Schedule 1 to the Regulations.  However, taking the applicant’s conduct and discipline in prison into consideration in assessing dangerousness is one thing, taking them into consideration as an independent reason for the continued detention of the applicant is another.  I do not believe they could be a sufficient reason for continue detention, if it is not thought there was need to protect the public “from reasonably foreseeable harm”.

Conclusion

96. In summary, in my view :

(1)    The sentence of detention at HMP is a sentence in two parts.

(2)    The first part of the sentence, namely, the minimum term, represents the punitive and retributive part of the sentence and must be determined by the judiciary : Yau Kwong Man (No.1).

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

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

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

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

(7)    The reasons given were inadequate.  It is not clear on what basis the decisions “to continue detention” was made.

97. For the above reasons, I shall grant the following relief sought by the applicant :

1.    Certiorari to quash the decision of the respondent made at the conclusion of the applicant’s sentence review on 26 September 2003 to make no recommendation for any change in the applicant’s status as a long term prisoner.

2.    Certiorari to quash the decision of the respondent made on 9 January 2004 to maintain its said decision of 26 September 2003.

3.    An order that the matter be remitted to the respondent to be re-determined in accordance with law.

4.    A declaration that the respondent in reviewing the applicant’s sentence must not take any decision which would have the effect any further punitive period of imprisonment on the applicant.

5.    A declaration that the applicant is entitled to make oral representations by counsel of his choice at his sentence review.

98. I make an order nisi that the applicant is to have the costs of this application, to be taxed if not agreed.  The applicant’s costs are to be taxed in accordance with Legal Aid Regulations.