LegCo Paper No. CB(2) 106/96-97
(These minutes have been seen
by the Administration and cleared
with the Chairman)
>Ref : CB2/BC/17/96
Bills Committee on
Long-term Prison Sentences Review Bill
Minutes of the Second Meeting
held on Monday, 21 April 1997 at 2:30 pm
in Conference Room B of the Legislative Council Building
Members present :
Hon Ronald ARCULLI, OBE, JP (Chairman)
Hon Emily LAU Wai-hing
Hon James TO Kun-sun
Hon Andrew CHENG Kar-foo
Hon LEUNG Yiu-chung
Hon Margaret NG
Hon TSANG Kin-shing
Members absent :
Hon Bruce LIU Sing-lee
Hon Lawrence YUM Sin-ling
Public officers attending :
- Mr Alex FONG, JP
- Deputy Secretary for Security
- Mr Gilbert KO
- Assistant Secretary for Security
- Mr Peter PI
- Assistant Commissioner of Correctional Services
- Mr Samson CHAN
- Senior Superintendent (Programme Development)
Correctional Services Department
- Mr Ian DEANE
- Senior Assistant Solicitor General
- Mr Geoffrey FOX
- Senior Assistant Law Draftsman
Clerk in attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
Staff in attendance :
- Mr Jonathan DAW
- Consultant, Legal Service Division
- Mr Paul WOO
- Senior Assistant Secretary (2)5
I. Confirmation of minutes of meeting
(LegCo Paper No. CB(2)1921/96-97)
The minutes of the meeting held on 11 April 1997 were confirmed.
II. Public Views
Subsequent to the last meeting held on 11 April 1997, the Secretariat had written to the following organizations for their submissions on the Bill -
- Hong Kong Bar Association
- The Law Society of Hong Kong
- Prisoners Friends Association
- The Society for the Rehabilitation of Offenders, Hong Kong
- Hong Kong Christian Kun Sun Association Limited
- Christian Prison Pastoral Fellowship Limited
The Chairman advised that the Secretariat would follow up the submissions with the relevant organizations.
III. Meeting with the Administration
(LegCo Brief - SBCR2/5691/89
Deputy Secretary for Security (DS(S)) gave a brief introduction on the proposals of the Bill as highlighted in the LegCo Brief.
Review of discretionary life sentences cases
Ms Emily LAU Wai-hing enquired on the proposed changes to the present system for reviewing discretionary life sentences cases, as set out in paras 7(a) and (b) of the LegCo Brief. She said that the review mechanism for new cases, ie, the specification of a tariff period by the judicial decision of the trial judge, appeared to be more open and fair than that of the existing cases, where the tariff period would be set on the recommendation of the Chief Justice (CJ) and subject to the approval of the Governor. DS(S) replied that an explanation of the difference in treatment was given in para 2 of Annex C of the LegCo Brief. He advised that for existing cases where the trial and sentencing had already taken place, an appropriate review could only be done administratively. The procedures spelt out in para 7(a) of the LegCo Brief were transitional arrangements aimed at dealing with the 32 cases involving 12 existing prisoners serving discretionary life sentences and 20 young murderers detained at Her Majestys pleasure (HMP). Senior Assistant Solicitor General (SASG) added that, in exercising the function to recommend to the Governor on the tariff period, CJ would have access to the full documents and records of the original trial of the offence. During the review process, the prisoner had the right to be heard and to make representations to the Governor on CJs recommendation. The procedures were described in the proposed section 67C of the Criminal Procedure Ordinance(CPO).
In response to the Chairmans question, the Administration and Consultant, Legal Service Division advised that CJs duty was restricted to making recommendation on the appropriate tariff period to be set. The question of how the prisoner behaved in prison was a separate matter as to whether the prisoner was suitable for release upon the expiry of the tariff period. A report from the Commissioner of Correctional Services on the prisoner to CJ was not envisaged. SASG added that the procedures in UK were similar. In UK, the Home Secretary determined the tariff period based on a judicial recommendation.
Members opined that for the purpose of providing greater fairness to existing prisoners serving discretionary life sentences, there should be an opportunity for the prisoner to make representations to CJ before CJ made a recommendation to the Governor on the tariff period to be set, in addition to the prisoners opportunity to make representations to the Governor as provided under the proposed section 67C (5)(b) of CPO. Representations made to CJ by the prisoner should also be forwarded to the Governor for the Governors consideration.
SASG expressed reservations as to the need for representations to be made both before and after CJ made a recommendation on a tariff period, as it might work to the detriment of the prisoner in terms of delaying a decision on the review. He added that in the UK, the prisoner was given the right to make representation after the judicial recommendation. DS(S) said that, from the policy point of view, the Administration had no strong views about when representations by the prisoner should be made. The Administration would consult the Attorney Generals Chambers and revert to members in due course.
Members also called upon the Administration to consider providing appeal channels for a prisoner aggrieved by the decision of the length of the tariff period to lodge an appeal. Members could not agree with the explanations given in para 4 of Annex C of the LegCo Brief in respect of safeguarding the prisoners interests. Members pointed out that the determination of a tariff period in new cases was appellable, and that an appeal against the tariff period in such cases was different from a judicial review against the decision of the Governor. There was a difference in nature between the two in that the former was a direct appeal against a sentence where the original sentence might be set aside and be substituted with a new sentence, whereas the latter was purely an administrative review. Members enquired if it was practicable to provide existing prisoners with a right to appeal in the normal way as if at the time of the original sentence was given.
In response, the Administration replied that the differential in handling existing cases and new cases was inevitable because the sentencing in respect of the existing cases was over. The trials could not be re-created. When the Governor determined the tariff periods for the existing cases, his decisions were administrative which could not be subject to the appeal mechanism applicable to judicial decisions in the new cases. With the prisoner having the right to make representations under the proposed review procedures, the interests of the prisoner should be secured.
Members said that the standards applied in setting the tariff period for an offence might change over time and hence the length of the tariff period could vary. Appeal channels should therefore be provided to the existing prisoners when their cases came under review. The Administration noted members views and undertook to give a written reply at the next meeting.
Members pointed out that it would be helpful to add a provision in the proposed section 67C of CPO which required that CJs report to the Governor should set out any special considerations or circumstances to be taken into account in future reviews. The Administration agreed to examine the proposal.
Referring to a point raised by Miss Margaret NG, Consultant, Legal Service Division advised that the Governors role as set out in the Bill was constitutionally in order. There was not a breach of principle between the judiciary and the executive because the ultimate power of commutation rested with the latter. This authority was also provided for under the Basic Law.
Long-term Prison Sentences Review Board (Review Board)
In reply to members questions, DS(S) said that the reasons for providing separate authority to the proposed Review Board to prescribe post-release supervision for prisoners were given in para 4 of the LegCo Brief. The existing Board of Review, Long Term Prison Sentences (BOR, LTPS) had been consulted on the proposals. He added that in this particular area, the Review Board would be dealing with long-term prisoners whose indeterminate sentences had been changed to determinate sentences, whereas the Post-Release Supervision Board would primarily cater for prisoners with short-term, determinate sentences.
In response to members queries, the Administration informed members that the existing BOR, LTPS conducted quarterly meetings at which cases were reviewed for possible remission of the sentences. About 100 cases would be dealt with each time. Main emphasis was placed on indeterminate sentences cases and those determinate sentences which warranted special consideration. Support service was provided to the Board by the Boards Secretariat. DS(S) added that a total of 450 cases had been handled in 1996, comprising 85 indeterminate sentences cases (76 adults and nine HMP cases) and 365 determinate sentences cases (222 adults and 143 young offenders). Consequent to the review, recommendations had been made for 10 indeterminate sentences to be changed to determinate sentences (nine adults and one HMP cases). Under existing practice, BOR, LTPS had to take into account a total of 18 factors in reviewing the sentences. In cases where not all the requirements were met, a remission of sentence would generally not be recommended. The introduction of a conditional release under supervision scheme as proposed under the Bill would widen the range of options open to the Review Board. It would then be possible for the Review Board to recommend early release of the prisoners in some marginal cases.
At the request of members, the Administration undertook to provide an information paper on the operation of the existing BOR, LTPS and its Secretariat for members information.
Mr LEUNG Yiu-chung pointed out that for HMP cases, Prison Rule 69A required that these cases be reviewed by BOR, LTPS every year until the prisoner reached the age of 21, and every two years thereafter, for the purpose of considering whether a remission of sentence was appropriate. In view of the large number of cases coming up for review, Mr LEUNG was concerned whether the Board could adequately cope with the workload. DS(S) replied that BOR, LTPS was able to meet the requirement as laid down under Prison Rules 69A.
Members asked how the proposed Review Board would gear up to discharge its statutory obligations in the light of the new statutory functions proposed to the Review Board, such as new powers to order post-release supervision and conditional release under supervision. Members were also concerned whether it was practicable for the Review Board to conduct review on the sentences of the prisoners as provided under the Bill, and whether there would be the necessary time for the quality of review of each case, given the new duties imposed as a result of the Bill.
To address members concerns, DS(S) agreed to provide a written response together with some statistics on previous recommendations made by BOR, LTPS. DS(S) also suggested that the Secretary of BOR, LTPS be invited to the next meeting to brief members on the work and mode of operation of the Board.
Impact of a recent judicial review case
In connection with a recent judicial review case brought by a prisoner detained under HMP, Mr LEUNG Yiu-chung asked the Administration to explain the circumstances and clarify whether the result of the judicial review would impact on the proposals of the Bill, and advise on the follow-up action to be taken by the Administration arising from this judicial review. DS(S) replied that as a result of the judicial review, the Administration would conduct a fresh review of 20 HMP cases as soon as possible, taking into account the possibility of release on license under the repealed section 70(3) of CPO. DS(S) said that the Courts ruling of this particular case did not affect the proposals in the Bill. The future review of HMP cases would still be done in accordance with the new statutory review procedures as proposed in the Bill upon the Bills enactment. The Administration agreed to respond in writing in more detail to Mr LEUNGs questions.
IV. Date of next meeting
The dates of the next two meetings were scheduled as follows:
- 29 April 1997 at 2:30 pm
- 5 May 1997 at 12:30 pm
(Post-meeting note : The meeting at para 20(a) was subsequently cancelled.)
V. Close of meeting
The meeting ended at 4:30 pm.
Provisional Legislative Council Secretariat
31 July 1997
Last Updated on 18 October 1997