For information
on 13 January 1997
LegCo Panel on Security
Establishment of a Statutory Board of Review,
Long Term Prison Sentences
Purpose
This paper informs Members of our plan to introduce legislation to put the existing Board of Review, Long Term Prison Sentences (BOR, LTPS) on a statutory basis and to improve the operation and fairness of the existing system.
Background
2. We have been taking action to modernise the legislative and administrative framework for the penal system in Hong Kong :
- The Post-Release Supervision of Prisoners Ordinance was enacted in May 1995 to establish a Post-Release Supervision Scheme. The objective is to provide discharged prisoners with guidance and assistance to help them return to society and lead a normal, useful life, thus minimising recidivism; and
- Amendments have been proposed to the Prison Rules to ensure their consistency with the Bill of Rights and to provide for more effective and efficient administration of the rules.
3. In order to further enhance the transparency, efficiency and fairness of our prison sentence review and remission system, we are planning to introduce legislation to establish the BOR, LTPS as a statutory body.
Current non-statutory BOR, LTPS
4. The BOR, LTPS is as an advisory body to review and make recommendations to the Governor on possible remission of sentences in respect of the following cases -
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(a)
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prisoners with life sentences (mandatory or discretionary);
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) Indeterminate
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(b)
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young prisoners detained at Her Majestys pleasure;
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) Sentence
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(c)
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prisoners with long term sentences (ten years or longer); and
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) Determinate
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(d)
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young prisoners under the age of 21 at the time of conviction.
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) Sentence
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5. The main function of the Board is to examine the circumstances pertaining to a prisoner at the time of review to determine whether any change to his sentence would be justified. As part of that process, the Board considers a number of factors relating to the prisoner, including the prisoners progress, the nature of offence, mitigating circumstances, his criminal history and age at the time of offence, his remorse and response to counselling or psychological treatment, his likelihood of rehabilitation, and any compassionate grounds. The Board also considers the factor of public safety and the likelihood of the prisoner reoffending.
6. The Chairman and members of the Board are appointed by the Governor, generally for terms of three years. The Chairman is a Judge of the High Court. There are at present seven non-official members, drawn from broad backgrounds, including psychology, psychiatry, social work, legal profession, education and business. Representatives from the Security Branch, Legal Department, Correctional Services Department and Social Welfare Department are ex-officio members.
Proposals to establish a statutory BOR, LTPS
7. To further enhance the transparency, efficiency and fairness of the prison sentence review and remission system, it is proposed that the existing BOR, LTPS be established on a statutory basis. On membership, it is proposed to add a Deputy Chairman who will be a Judge of the High Court, and to remove government officials as ex-officio members on the Board. Government officials can attend the meeting as required but will not be members of the Board.
8. In the proposed legislation for the BOR, LTPS, we intend to introduce some improvements to the current system of prison sentence review and remission. The first two, explained in paragraphs 9 to 10 below, are to improve its operation. The latter three, explained in paragraphs 11 to 18 below, are to improve on its fairness.
A. Post-release supervision
9. The objective of post-release supervision is to provide discharged prisoners with guidance and assistance to help them reintegrate into society as law-abiding citizens. Such supervision is particularly useful for prisoners who have served long periods of detention. At present, orders for post-release supervision in respect of prisoners serving determinate sentences are made by the Post-Release Supervision Board. It is proposed that separate authority be given to the statutory BOR, LTPS to prescribe post-release supervision for prisoners whose sentence the Governor has remitted from an indeterminate sentence to a determinate one on the advice of the BOR, LTPS. Since the BOR, LTPS has been regularly reviewing these cases throughout the period of their sentences, the BOR, LTPS should be in a better position to monitor these cases than the Post-Release Supervision Board. Moreover, as there is some cross-membership between the two Boards, this proposal would ensure that the approach to post-release supervision by both Boards would be broadly consistent with each other.
B. Conditional release under supervision
10. To further improve on the operation of the review system, it is proposed that a "conditional release under supervision" scheme be introduced. The workings on this scheme will be similar to the post-release supervision scheme. It will provide an additional tool for the Board to use to enable it to perform its sentence reviewing role better. With this additional tool, the range of options open to the Board to discharge its functions will be broadened. For example, the Board can decide on a determinate sentence with post-release supervision, a determinate sentence without any supervision, or conditional release under supervision to be followed by a determinate sentence. The availability of these tools will provide better safeguard to both the interests of the affected prisoners and the community.
C. Review of discretionary life sentence cases
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 -
- 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;
- 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
- 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.
D. Review of sentences of young murderers
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 Majestys 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.
(a) Young murderers sentenced before 1993 (detained at Her Majestys pleasure)
14. At present, there are 20 young murderers detained under HMP. (There are 3 other HMP cases which are reviewed by the Mental Health Review Tribunal. These were adult offenders who were found guilty but insane upon conviction and were ordered to be detained under HMP.) Pursuant to Prison Rule 69A, these cases are reviewed by the BOR, LTPS every year until the prisoner reaches the age of 21, and every two years thereafter, for the purpose of considering whether a recommendation should be made to the Governor for possible remission under Article XV of the Letters Patent.
15. In considering future arrangements for HMP prisoners, we have made reference to case law in the United Kingdom and the European 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.
(b) Young murderers sentenced after 1993
16. Before the abolition of the death sentence in 1993, there was a differential treatment in the sentencing of adult and young murderers. While adult murderers were subject to a sentence of capital punishment, young murderers, as explained in paragraph 13 above, were sentenced to be detained at HMP. However this differential treatment was removed following legislative amendments to abolish the death sentence. This is undesirable because -
- young murderers should be treated differently from adult murderers on account of their age, in line with the position in several other jurisdictions; and
- on the grounds of equality of treatment, young murderers whose offence was committed after the abolition of the death sentence in 1993 should not be treated more harshly (i.e. given a life sentence instead of detention under HMP) than those whose offence was committed before the abolition.
17. It is proposed that the arrangements proposed for HMP cases, as explained in paragraph 15 above, should also apply to 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 for young murderers.
E. Review of sentences of prisoners transferred back to Hong Kong
18. Hong Kong has prisoner transfer arrangements with 24 countries. Hong Kong resiidents serving prision sentences in these countries may apply for transfer to Hong Kong to serve the remainder of their sentences. These transfer arrangemnets are based on the humanitarian belief that it would be beneficial for the prisoners' rehabilitation that they should be allowed to serve their sentences within their own society. It is proposed that we make clear in the new bill that Hong Kong prisioners, upon their transfer back to Hong Kong to serve their sentences should also be eligible for review by the BOR, LTPS, for the purpose of considering the remission of their sentences.
Security Branch
January 1997
Last Updated on 21 August 1998
