A v Chief Executive of the HKSAR
Court of First Instance
Constitutional and Administrative Law List No 33 of 2010
Thomas Au and Andrew Chan JJ
24 June, 25 September 2013

Decision refusing to recommend to Chief Executive conversion of applicant’s mandatory life sentence into determinate one

X was convicted of murder and given a mandatory life sentence in February 1995. After quarrelling with V, a street sleeper, about stealing a packet of biscuits, X returned with two other men and chopped V more than 15 times. Some cuts were so deep, they hacked off pieces of bone and left behind fragments of metal.

As it had done following its previous reviews of X’s sentence, in 2010, the Long-term Prison Sentences Review Board (the “Board”) refused to recommend to the Chief Executive converting X’s sentence to a determinate one, explaining in a letter to X, that the offence committed was very serious and the period he had served (15 years and 1 month) was insufficient in all the circumstances. X applied for judicial review of the Decision.

Held, dismissing the application, that, inter alia:

The Board was not, as X argued, under a “heightened” duty to give reasons. The only question was whether the duty had been discharged by giving adequate reasons and this must be considered in the context that a person’s liberty was at stake.

On a proper and objective reading of the Ordinance, the “sufficient” period was not that which would justify a prisoner’s release. The Board was first to consider whether he had already served a sufficient period of sentence which would trigger the consideration of an early release. It was only after that threshold period was met that the Board would consider, whether and if so, what further length of sentence he should serve before he could be released.

Here, the Board had given adequate reasons for the Decision. This was a very gruesome killing and given the very serious nature and circumstances of the offence, the serving of 15 years of his sentence was not sufficient to warrant the consideration of an early release.

In all reviews of mandatory life cases, the Board was exercising an executive, not judicial, function and it was not appropriate for it to indicate how long a prisoner should serve as the punitive period of the sentence.


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