Kissel v Long-Term Prison Sentences Review Board
Court of First Instance
Constitutional and Administrative Law List No 137 of 2016
Thomas Au and Andrew Chan JJ
17 May 2018

Administrative law - Long-term Prison Sentences Review Board - refusal to recommend converting indeterminate prison sentence to determinate one - whether Board erred in refusing to indicate any "triggering period" for consideration of early release

Criminal sentencing - murder - mandatory life sentence - refusal of Long-term Prison Sentences Review Board to recommend conversion to determinate sentence - judicial review

Nancy Ann Kissel (K) was unanimously convicted of murder after a retrial and sentenced to mandatory life imprisonment. The Court of Final Appeal dismissed K's application for leave to appeal against conviction. On the third review of K's sentence, the Long-term Prison Sentences Review Board (the Board) declined to recommend to the Chief Executive converting her sentence to a determinate one, stating the period she had been in detention was insufficient in all the circumstances to warrant a consideration of making such a recommendation to facilitate her early release (the Decision). K applied for judicial review of the Decision, arguing that at the time of the Decision, the Board should have indicated to her: (a) the definite term; or (b) the punitive part; or (c) the minimum period K must serve which would trigger consideration of her early release on the merits as a matter of fairness. Section 8 of the Long-term Prison Sentences Review Ordinance (Cap.524) provides that "The Board must have primary regard to … (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 [she] is being detained), to warrant consideration being given to having the prisoner released from detention early".

Held, dismissing the application, that:

  1. It would be illogical to compel the Board to indicate how long a convicted prisoner should serve as the punitive period of the sentence in all reviews of mandatory life cases, as that was a judicial function which would not be for the Board to perform. In the premises, it would be absurd to require as a matter of natural justice the Board to further apportion any other lesser period such as the "triggering period" (Lau Cheong v HKSAR (2002) 5 HKCFAR 415, Tong Yu Lam v Long-term Prison Sentences Review Board [2009] 4 HKC 133 applied). (See paras.8-9, 17.)
  2. There was no legal requirement for the Board to specify any minimum term to be served. Under s.8(c) of the Ordinance, its function was to determine whether, in all the circumstances, especially the nature of the offence, a sufficient period of the sentence had been served to justify "consideration" of whether, and if so when and how, the prisoner should be released early. The "sufficient period" was no more than one step in the review process. The Board must have regard to the four principles in s.8, including s.8(c), on each and every occasion since the prisoner's circumstances might change significantly between reviews. Thus, in rejecting a review, it was inappropriate and impracticable for the Board to identify the triggering period or the punitive part of the sentence as this would depend on the prisoner's circumstances in the future (A v Chief Executive of HKSAR [2013] 4 HKLRD 404 applied). (See paras.25, 28-35, 37.)
  3. As the matters relevant to each review were set out in the statute, prisoners, including K, were not unfairly prejudiced in not being able to make informed representations without knowing the "triggering period" or the punitive part of the sentence. (See paras.38, 43.)

Application

This was an application for judicial review of the refusal by the Long-term Prison Sentences Review Board to recommend to the Chief Executive the conversion of the applicant's mandatory life sentence for murder into a determinate one. The facts are set out in the judgment.

Jurisdictions: 

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