Provisional Legislative Council Panel on Security
Subcommittee on Overcrowdedness in Penal Institutions
Information Sought by Members at a Meeting
on 9 October 1997
||The frequency and trend on non-custodial sentencing options taken by the courts in the past 5 years.|
||Sentencing options are exercised by the courts in accordance with established sentencing principles. Generally, no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate (in accordance with section 109A of the Criminal Procedure Ordinance, Cap. 221). Statistics on selected non-custodial sentencing options are provided in Annex A.|
||Further details on the other non-custodial options available overseas as stated in para. 5 of the information paper for meeting on 9.10.1997, and why the Administration considers these options not suitable for Hong Kong, and whether any study has been taken to arrive at the decision.
||We have considered non-custodial options available in other countries. A summary of our review is at Annex B.
||Under the Prison Rules, a prisoner does not serve his full sentence and may only need to serve up to two-thirds of his sentence, subject to his industry and good conduct in prison. Whether such arrangement applies to foreign prisoners serving prison terms in Hong Kong; and to provide the number of such early release cases in the past 5 years.|
||Remission of sentence under the Prison Rules is applicable to all prisoners regardless of nationality. A yearly breakdown of the number of foreign prisoners (excluding Mainland Chinese prisoners) released in accordance with the remission provisions in the Prison Rules in the past five years is as follows:
|1994 ||1 890
||The procedures for review of prisoners' sentences by the Long-term Prison Sentences Review Board.|
||The procedures are set out in Annex C.
||Of the 600 Mainland illegal immigrants (MIIs) imprisoned for taking up illegal employment, the number of MIIs who have repeated such offence; whether Vietnamese illegal immigrants found working illegally in Hong Kong would be imprisoned; and the number of inmates of foreign nationality imprisoned for committing such offence.|
||We do not have statistics on the number of Mainland IIs who have repeated the offence of taking up illegal employment in Hong Kong. Vietnamese IIs working illegally in Hong Kong are prosecuted when other offences are committed concurrently. In the first nine months in 1997, over 400 foreign nationals, excluding Mainland IIs, were prosecuted for taking up illegal employment, of whom over 160 were given custodial sentence.|
||The population of non-violent prisoners of foreign nationality and the breakdown in terms of offences committed e.g. those sentenced for using fake travel documents.|
||It is not clear what " non-violent prisoners of foreign nationality " means. We assume that " non-violent offences' means offences which are not solely prosecuted by Police. The number of prisoners of foreign nationality having committed the offence of " breach of condition of stay " , as at 10 October 1997, was 108.
||Details of the procedures for transfer of prisoners to their own countries to serve their sentences. A member pointed out that some foreign prisoners (3 Colombian prisoners nos. 168784, 116727 and 174947; 2 Bolivian prisoners nos. 175775 and 15048) have requested for transfer to their countries and the transfer have yet to be effected.|
||The Transfer of Sentences Persons Ordinance provides the local legislative basis for the transfer of prisoners from Hong Kong back to their home countries to serve the remainder of their sentences. In addition to that, we need to work out with the receiving countries the necessary arrangements for the transfers.|
||Whether arrangements are in place for transfer of prisoners from Mainland to Mainland China; and if not, what steps are being taken to negotiate the arrangements along the lines as provided under The Transfer of Sentenced Persons Ordinance. Some MIIs sentenced for taking up illegal employment may wish to serve their sentence in the Mainland.|
||There is at present no arrangement for the transfer of sentenced persons between Hong Kong and the Mainland. We have not yet discussed this issue with the Central People's Government.|
||The shortfall in penal accommodation when the redevelopment projects are completed including the projects to be completed by 1999, and ways of speeding up the projects to increase penal capacity.|
||According to our current projections, there could be a shortfall of up to 3 000 penal places around the turn of the century when the present redevelopment projects are completed. We are monitoring the progress of the redevelopment works closely to ensure no slippage.|
||Details on projects or sites that had been considered by the Administration to increase penal capacity and ways of resolving the overcrowding problem.|
||Yam O was found to be a suitable site for the construction of new prison facilities. We are still exploring the use of other suitable sites to increase penal capacity.|
||Overseas experience in resolving the problem of overcrowding in penal institutions.|
||We understand that in countries such as Australia, the United States, Malaysia and Indonesia, the correctional authorities focus on either planning or building new penal facilities to reduce prison overcrowding in the long term. The use of alternatives to imprisonment in other countries appears to be selective and limited to specific categories of offenders, such as community service work for fine defaulters in some Australian jurisdictions, home detention with electronic monitoring in some American states for male offenders convicted of driving under the influence of alcohol.|
||Members consider that the manpower for managing penal institutions should be based on the actual penal population in the institution in question rather than on the planned penal accommodation. Any plan for review in this regard.|
||The present practice of providing manpower resources to correctional institutions on the basis of certified penal capacity is consistent with practices in other disciplined services. For example, manpower resources are provided to Police stations and fire stations on the basis of each station's planned capacity. The alternative of providing manpower resources according to actual penal population is not practicable in terms of staff planning because the penal population fluctuates daily. Moreover, the provision of prison staff is not necessarily related to changes in the penal population on a pro rata basis. For example, prisoners in day-time activities, which usually take place in common areas, receive group supervision instead of one-on-one supervision. Therefore, the difference between, say, 10 Correctional Services officers supervising 200 prisoners and 10 officers supervising 210 prisoners is marginal. In practice, Correctional Services Department exercises flexibility in deploying staff both within and between institutions, having regard to each institution's needs, to ensure that a secure and well-managed penal environment is maintained. The manpower needs at penal institutions are monitored closely, and additional staff have been provided in recent years, including 139 posts for the new Chi Ma Wan Drug Addiction Treatment Centre and 149 posts for the new Lo Wu Correctional Institution.|
Statistics on Selected Non-custodial Sentencing Options
Police Superintendent's Discretion Scheme
|Period||Number of |
|Number of |
|January-June 1996||5 321||1 981
|July-December 1996||4 491||1 637
|January-June 1997||4 742||1 553
Note: Above statistics only available from 1 January 1996.
Community Service Order Scheme
|Year||Number of new orders made
Probation Service Scheme
|Year||Number of new orders made
Review of Non-custodial Options Available Overseas
While by no means intended to be exhaustive, the following list illustrates some of the non-custodial measures available in other countries:
- Home detention, curfew and use of electronic monitoring;
- Foster care;
- Independent living programme;
- Day in prison programme; and
- Weekend detention.
Home detention, curfew and use of electronic monitoring
II.Home detention is the reduction or withdrawal of the offender's autonomy of movement by restricting him to his home except for work and other limited activities such as medical appointment.
III.Another sentencing option similar to home detention is curfew. A typical example is curfew orders under the United Kingdom Criminal Justice Act 1991 that require an offender, aged 16 and over, to remain at a specified place for specified periods of between 2 to 12 hours per day. Different lengths of time can be specified for different days, and different places may be specified, to take account of the offender's circumstances.
IV.Essential to the enforcement of these non-custodial measures is some means of checking compliance, such as personal visits, telephone calls. With the advancement of modern technology, monitoring of the location and movement of offenders by electronic devices has been in use in some countries such as the United States, Australia and Singapore. One kind of electronic monitoring is to require the offenders to wear a small transmitter which emits a radio signal which is picked up by a receiver attached to the offender's telephone. During the curfew hours, the computer at the monitoring office automatically dials the offender's phone at random intervals to determine whether the receiver is receiving a signal from the transmitter. If so, the computer will register that the offender is at home or the specified place. If not, the computer will register a potential violation.
V.Electronic monitoring devices are not 100% reliable. There may be problems such as tampering of device, equipment and communication failures, signal interference caused by electro-magnetic fields from electrical appliances. Moreover, there will be substantial resource implications arising from the establishment of a monitoring office with all the necessary equipment and subsequent maintenance, and the extra manpower needed to deal with violations. Also, given the packed living environment in Hong Kong, to confine the offender to his home may lead to more family conflicts. More seriously, an offender under electronic surveillance can still mingle with undesirable peers and gain access to drugs and vice activity. If the schemes are not controlled properly, they can pose security threats to the community.
VI.It is the process whereby a juvenile or family court takes a juvenile offender out of his natural home and places him in a substitute or foster home when circumstances in the natural home are totally unsuitable. Foster care placements include group foster care homes and individual foster homes. A group foster home provides a substitute home for several foster teenagers. Foster parents must meet certain certification and inspection standards. They, as " employed parents', are given subsidies for providing food, shelter, clothing and other expenses for their foster teenagers.
VII.The best foster homes provide a supportive home-like environment for the teenager, individual care, attention, and affection in a family environment, thus avoiding institutionalization. Yet, reportedly only a few foster homes adequately replace a real home, and young offenders tend to have negative feelings towards foster care placement. Sometimes, a poor match is made between the foster teenager and parents. This option is not likely to be suitable for the compact home environment in Hong Kong. Moreover, it provides for young offenders only and cannot provide relief to the serious overcrowding problem in adult prisons in Hong Kong.
Independent living programme
VIII.The programme caters for young offenders who are too independent to accept the parental confines of a foster home. These offenders are often mature enough to live on their own, but are unable to manage financially and require guidance and support. Young offenders placed on independent living status may live in an apartment, YMCA, YWCA, or other group residence. The supervising agency provides part or all of the offenders' room, board, and miscellaneous expenses while they attend school, receive vocational training, and/or work part-time. Supervision is provided to help them meet their personal objectives as they progress towards self-sufficiency. Again, this option applies to young offenders and cannot ease overcrowding in adult prisons in Hong Kong.
Day in prison programme
IX.The programme emphasizes the realities of imprisonment through the exposure of young offenders to the daily routines in a prison - a " prisoner for a day " experience. There is formal pre-prison assessment and counselling of the young offender as well as intensive follow-up after the day in prison.
X.The target group includes young offenders who have a history of offending and those who are likely to commit further offences that could lead to imprisonment. As this non-custodial option applies primarily to young offenders only, it cannot provide relief to overcrowding in adult prisons in Hong Kong.
XI.It is an order of the court that requires an offender to serve a sentence of imprisonment on weekends and allow him to remain at liberty in the community during the rest of the week. If the order is breached and subsequently cancelled, the offender has to serve the unexpired portion of the sentence in full-time custody. Like home detention, it serves punitive and deterrent purposes without totally disrupting the life of the offender. Strictly speaking, it is an alternative form of imprisonment, rather than an alternative to imprisonment.
XII.In Holland, weekend detention is an alternative available only to offenders who receive sentences of two weeks or less, the majority of which being connected with drunken driving. In Belgium, it is an option for any offender who has a job and receives a sentence of two months or less. In Germany, courts can order the detention of young offenders aged from 14 to 20 for between one and four weekends. In New Zealand, offenders suitable for weekend detention must have been convicted of an offence punishable by imprisonment, must not have previously been sent to a detention centre or borstal, or served a prison sentence exceeding one month. Physically or mentally disabled offenders, the emotionally unstable and persistent offenders are not considered suitable for the programme.
XIII.Although weekend detention has enjoyed some popularity with some jurisdictions, the following problems were identified by the Queensland Government, leading to the termination of their scheme:
- Prisoners turned up at the prison intoxicated and consequently proved disruptive;
- In terms of potential rehabilitation, the full resources of the prison system, including suitable programmes and the involvement of professionals, were not available at the weekend;
- Contraband was introduced to other prisoners;
- Only those working a 9 am - 5 pm Monday-Friday rota, or those unemployed, were available for weekend detention. Shift workers were therefore militated against;
- Discipline in the prisons became a real problem. No sanctions were available in respect of weekend prisoners, which could and did lead to disruptive behaviour as they had to be released on Sunday. Staff complained of abuse and control problems;
- If weekend prisoners did not report to the prison, they would be deemed to be escapees, and additional police resources were utilized in their arrest; and
- The extra cost of running weekend detention in terms of accommodation, maintenance, provision of clothing, catering and supervision by prison officers being paid overtime rates did not justify the continuation of the scheme.
Procedures for Review of Sentences by
Long-term Prison Sentences Review Board
The Long-term Prison Sentences Review Ordinance (the Ordinance), enacted in June 1997, establishes the statutory Long-term Prison Sentences Review Board (the Board), which replaces the former non-statutory Board of Review, Long-term Prison Sentences. The Board is required to review, in accordance with the provisions in the Ordinance, the sentences of eligible prisoners at prescribed intervals, as follows:
|Category of prisoner||Frequency of review
|aged 21 or over when convicted, and imprisoned for mandatory life sentence or for a term of 10 years or more||first review after 5 years' imprisonment; subsequent reviews at 2-year intervals
|imprisoned for discretionary life sentence or Executive discretion
||for those sentenced after the commencement of the Ordinance, first review after 5 years' imprisonment or 6 months before the end of the minimum term (whichever is earlier), and for those sentenced before the commencement, first review by the Board when the minimum term is determined; subsequent reviews at 2-year intervals|
|under age 21 when convicted, and imprisoned for determinate sentence
||first review after 1 year's imprisonment; subsequent reviews at 1-year intervals until age 21; from age 21, reviews at 2-year intervals|
Options for the Board
2.The Board may make recommendations to the Chief Executive on whether the sentence of a particular prisoner should be changed. The Chief Executive may exercise his prerogative of mercy under Article 48(12) of the Basic Law to change a prisoner's sentence.
3.The Board may also grant conditional release with supervision to suitable prisoners serving indeterminate sentences, and grant early release with supervision to suitable prisoners whose indeterminate sentences have been changed to determinate ones.
4.In formulating its advice to the Chief Executive, the Board will consider the following factors as appropriate:
- nature of the offence;
- criminal history;
- views of the trial judge;
- mitigating circumstances;
- response to counselling and rehabilitative treatment;
- age of the prisoner at the time of committing the crime;
- likelihood of rehabilitation;
- comparison with other cases;
- public interest;
- psychological considerations;
- psychiatric considerations;
- behaviour while serving sentence;
- medical considerations;
- current age of the prisoner;
- length of sentence served;
- compassionate grounds;
- the minimum term if applicable;
- assistance provided to law enforcement agencies; and
- any other relevant factors.
Operation of the Board
5.The Board will operate on a quarterly cycle and meet four times a year to review cases. Meeting on a quarterly basis is an optimal arrangement because it allows sufficient time for the necessary preparation work and for members of the Board to study each case in detail before the meeting.
6.Normally, the cycle will begin with the Board's Secretariat listing all the cases due for review within the quarter. Departments will then be asked to prepare the relevant reports, which will take about one month. Reports provided by Correctional Services Department will cover the prisoners' performance, health condition and psychological condition if relevant. Reports provided the Police will cover the criminal aspects. Reports provided by Social Welfare Department will cover family circumstances, rehabilitation and employment prospects. The relevant court records will also be provided. Upon receipt of all the required information, the Secretariat will compile it into case files on individual prisoners and arrange for the case files to be printed into two volumes of discussion papers, one for indeterminate sentences and the other for determinate sentences. Information provided by the prisoners, such as written representations, will also be incorporated into the papers. It will take about two months to complete these papers.
7.At the beginning of the third month, the discussion papers will be sent to the members of the Board. They will have 3-4 weeks to study the papers. Meanwhile, the Secretariat will conduct background research into the cases and summarize, in the form of a synopsis, the prisoners' background, criminal history, details of the offences convicted, performance in prison, progress of rehabilitation and sentences recommended by the Board in previous, similar cases. Copies of the synopsis will be distributed to the members about two weeks before the meeting.
8.Each quarterly meeting of the Board will last one afternoon. At each meeting, about 150 cases will be reviewed, with about 15% involving indeterminate sentences, and 85% involving determinate sentences. Generally speaking, the latter cases are more straightforward and do not require lengthy deliberations. The Board is likely to spend more time to discuss the former cases. The members would have studied the cases thoroughly before each meeting. The members are professionals drawn from various backgrounds, including psychology, psychiatry, social work, legal profession, education and business. They are used to dealing with voluminous paper work. Moreover, some of them, including the President, served on the former non-statutory review board and have been following the cases and are therefore familiar with the history of many of the cases.
(D) Representations and petitions
9.Representations and petitions sent to the Board or copied to the Board by various sources, such as Security Bureau, will be included in the discussion papers forwarded to the members for their consideration as soon as they are received. Representations and petitions received shortly before the meeting will be tabled and considered by the members during the meeting.