PLC Paper No. CB(2) 255
(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 Third Meeting
held on Monday, 5 May 1997 at 12:30 pm.
in Conference Room A of the Legislative Council Building
Members present :
Hon Ronald ARCULLI, OBE, JP (Chairman)
Hon Emily LAU Wai-hing
Hon James TO Kun-sun
Hon LEUNG Yiu-chung
Hon Bruce LIU Sing-lee
Hon TSANG Kin-shing
Members absent :
Hon Andrew CHENG Kar-foo
Hon Lawrence YUM Sin-ling
Public officers attending :
- Mr Alex FONG, JP
- Deputy Secretary for Security
- Mrs Sarah KWOK
- Principal Assistant Secretary for Security
- Mr Gilbert KO
- Assistant Secretary for Security
- Mr Peter PI
- Assistant Commissioner of Correctional Services
- Mr KWOK Leung-ming
- Senior Superintendent (Special Duty)
Correctional Services Department
- Mr Geoffrey FOX
- Senior Assistant Law Draftsman
- Mr Robson FOO
- Acting Secretary, Board of Review
Long Term Prison Sentences
- Mr Dennis LAW
- Member, Board of Review
Long Term Prison Sentences
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. Meeting with the Administration
Administrations response to issues raised at the meeting held on 21 April 1997
[LegCo Paper No. CB(2) 2155/96-97(01)]
The Chairman drew members attention to the Administrations response as provided in LegCo Paper No. CB(2) 2155/96-97(01). The Administration had accepted members suggestion that the Chief Justices reports to the Governor on tariff periods should set out any special considerations or circumstances to be taken into account in future reviews. The Administration was seeking the views of the Judiciary and the relevant departments on the proposals to provide a prisoner with an opportunity to make representations to the Chief Justice before the Chief Justice made recommendations to the Governor on the appropriate tariff period to be set, as well as to provide channels for a prisoner to appeal against the tariff period.
Concerning the background of the recent judicial review case, Deputy Secretary for Security (DS(S)) informed members that the case arose from the application by a prisoner detained at Her Majestys pleasure (HMP) for his case to be reviewed pursuant to the repealed section 70(3) of the Criminal Procedure Ordinance, which provided that the Governor might order a person detained at HMP to be released on licence. By consent of the counsel acting for both parties, the Government agreed to review the applicants case pursuant to the said provision. In order to accord equality of treatment to all HMP prisoners, the Government also undertook to conduct fresh reviews in respect of the other 19 HMP cases as well. DS(S) added that the authority of the Governor under the repealed section 70(3) of the Criminal Procedure Ordinance had never been exercised before.
With regard to the outcome of the judicial review case, Mr LEUNG Yiu-chung said that, if the future reviews of the 20 HMP cases resulted in the setting of a determinate sentence for all, or some, of the HMP prisoners before the enactment of the Bill, certain provisions in the Bill relating to HMP prisoners might need to be removed, or amended. DS(S) replied that reviews arising from the judicial review case and the arrangements prescribed under the Bill operated on different legal basis. In the former aspect, fresh reviews of the HMP cases would take into account the possibility of release on licence under the repealed section 70(3) of the Criminal Procedure Ordinance, whereas the review system proposed in the Bill was formulated under the authority of Article XV of the Letters Patent and, after 1997, Article 48(12) of the Basic Law. Reviews of the existing HMP cases were being carried out. Any HMP prisoners who were not granted release on licence after the review would still come under the legal framework of the review and remission mechanism proposed in the Bill. DS(S) added that, through adaptation of law, the reference to "Her Majesty" would be deleted after the change of sovereignty, thereby removing constitutional implications which might arise with regard to the authority of the Chief Executive to remit sentences. DS(S) pointed out that all HMP cases had been tried and the reviews would not change the sentences imposed.
Members enquired how HMP prisoners could rely on the repealed section 70(3) of the Criminal Procedure Ordinance to appeal for release on licence, since section 70 of that Ordinance had already been repealed. Senior Assistant Law Draftsman (SALD) replied that section 23 of the Interpretation and General Clauses Ordinance provided that where an Ordinance, or a part of it, was repealed, any right, privilege, obligation or liability acquired, accrued or incurred under that Ordinance before the repeal should not be affected by the repeal. Therefore, if a prisoner had a right to a review of his case for the purposes of being released on licence under section 70(3) before that section was repealed, notwithstanding the repeal, his right to a review would continue to exist and the prisoner would remain eligible for release on licence. At the request of the Chairman, Consultant, Legal Service Division (Consultant, LSD) undertook to further clarify this point with the Administration after the meeting, in particular, on whether a release on licence was a right or privilege within the terms of the Interpretation and General Clauses Ordinance. Referring to a members question, Consultant, LSD agreed that the Courts ruling with respect to the judicial review did not affect the proposals in the Bill.
The Administration undertook to provide a copy of the Courts judgment and the repealed section 70 of the Criminal Procedure Ordinance for members reference.
Administrations response to submissions on the Bill
The Administration agreed to provide written response to the submissions by the Hong Kong Bar Association, the Society for the Rehabilitation of Offenders, Hong Kong and the Hong Kong Christian Kun Sun Association Limited respectively, before the next meeting.
Operation of the Board of Review, Long Term Prison Sentence
[(LegCo Paper No. CB(2) 2146/96-97(01)]
Members noted that the Board of Review, Long Term Prison Sentences (BOR) operated on a quarterly cycle and each quarterly meeting of the BOR lasted one afternoon to review about 110 cases. Members enquired how the BOR could ensure that each eligible case would be properly examined. Mr Dennis LAW replied that members of BOR were familiar with the history and progress of the cases under review. Members of BOR were assisted by the Secretariat of BOR which was responsible for collating and analyzing information relevant to each case. Such comprehensive information included special assessment reports on the prisoners, the prisoners background, details of the offences convicted, performance in prison, progress of rehabilitation as well as any information provided by the prisoners and in petitions by concerned parties etc. Mr LAW said that it was important that each member of the BOR must be well-prepared for each review meeting. He explained that, depending on the nature of individual cases, some cases might require more detailed discussion than others. Generally speaking, cases involving determinate sentences were more straight-forward and did not require lengthy deliberations. The BOR normally spent more time in reviewing indeterminate sentence cases where it was necessary to decide whether a recommendation should be made to the Governor for possible remission through the setting of a determinate sentence.
Members were concerned about how the large number of cases involving determinate sentences, which formed 80% of the cases reviewed at each meeting of the BOR, had been dealt with. Mr Dennis LAW responded that, except under very special circumstances, detailed discussion on a case would not take place where the prisoner concerned was still serving the early part of his sentence. There was no strictly defined norms for members of BOR to follow. Yet, members of BOR would make reference to previous practices adopted by the Board. They would refer to sentences recommended by the Board in previous, similar cases and consider any factors relevant to each individual case before making a recommendation to the Governor for remission of sentences. In addition, the BOR also made recommendations on improvement of conduct and behavior of prisoners. DS(S) supplemented that, apart from the BOR, prisoners could make direct representations to the Governor. In some cases, the Governor had granted remission for special reasons, such as on health or family grounds.
Mr Dennis LAW advised that there was a Guidance Booklet on factors that the BOR would consider in reviewing cases. The Second Report of BOR was being prepared. The Administration agreed to provide copies of the Guidance Booklet and the BORs First Report for members reference.
In reply to members questions, the Administration said that prisoners would not be informed of the result given in the special assessment reports on their performance completed by the Correctional Services Department (CSD). Mr Dennis LAW said that the BOR was careful in scrutinizing the reports and it would raise queries if it appeared that there was no sufficient justification for a poor rating, such as no substantiating evidence that the prisoner concerned had been in breach of the prison rules. Arising from the assessment reports, the BOR could, as it saw fit, request the CSD to brief the prisoner on matters relating to improvement of performance. Mr LAW added that the BOR had not received complaints from prisoners concerning allegations of fabricated evidence or false accusations by CSD officers.
Referring to the provisions in the Personal Data (Privacy) Ordinance, members enquired whether it was a matter of right for prisoners to have access to the contents of the reports on their performance made by CSD for the consideration of the Board. SALD opined that it was an absolute right of a prisoner to request for access to his report. The question was, however, whether there were policy grounds for an exemption to refuse such requests. The Administration agreed to provide a reply after the meeting.
Mr LEUNGYiu-chung said that he had previously reported to the LegCo Panel on Security a case where a prisoner serving an indeterminate sentence had failed repeatedly to be granted a determinate sentence, despite the prisoner had achieved good results in all aspects such as personal psychological condition, performance in prison and progress of rehabilitation etc. Mr LEUNG urged that clear guidance must be given to prisoners for the purpose of assisting the prisoners to fulfil the requirements necessary to warrant the consideration of a remission of sentence. Mr LEUNG further pointed out that he could not receive letters which were said to have been sent to him by a prisoner he knew of. Assistant Commissioner of Correctional Services assured that there were no restrictions forbidding prisoners from sending letters from the prison. Under special circumstances where it was considered necessary, for security reasons, to vet any mail issued by prisoners, CSD would arrange to re-direct the letters intact to the addressees with explanation and comments, where appropriate. Mr James TO Kun-sun said that CSD should look into the matter seriously if there was evidence in support of Mr LEUNGs allegation.
II. Date of next meeting
The dates of the next two meetings were scheduled as follows -
- 19 May 1997 at 12:30 pm.
- 28 May 1997 at 8:30 am.
III. Close of meeting
The meeting ended at 2:30 pm.
Provisional Legislative Council Secretariat
7 July 1997
Last Updated on 20 October 1997