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| Pix credit here; also China Daily here |
It has become fashionable to speak of law--and the courts through which they are sometimes administered, as well as the more general, aspirational, and sometimes magically formulaic conception of "Rule of Law"-- the way it was once fashionable to speak of physics, and perhaps as well of jurisprudence (the science of law's nature). That "speaking" (however it is that one engages in speech acts these days) starts from the iron principle of "L"aw as a set of invariable rule/principles (whether expressed or not in any specific form) that are in or serve as the manifestation, or as the expression, of some sort of higher nature (sometimes though not always human nature) which, except for the interference of those who would thwart its operation, would inevitably and flawlessly operate in ways that produce what nature or the natural might judge (assuming any interest in a specific matter on Nature's part) as just, correct, right.
This understanding of law is tied to an equally ancient notion of justice (for example from Justinian's Institutes as "the set and constant purpose which gives to every man his due") as always lawful (full of or expressed within law) in the sense that (1) justice (what one is due) follows the law (as the expression of a perfect alignment between the ideal and its representation in social relations), and that (2) following the law is natural (in the sense of the fixity of its character), and that (3) the natural is inescapable (in the sense that things and events follow the law to which they are bound), and that (3) the great struggle of humanity is to "return to" or "attain alignment with" to this "state of nature" (and yes I am deliberately inverting its sense from generative theories of Anglo-American political theory from the time of the English religious-political wars of the 16-17th centuries), and that (4) this struggle is undertaken through a rigorous and scientific process of discovery, rationalization, and internalization of the fundamentals of nature (stability, prosperity, peace, human autonomy and self-actualization, human collectivity and collective actualization, the nation, the person, the reception of instruction in these matters from an external divinity or from the clues left through observation of what occurs, has occurred and is occurring, or as the culmination of desire form generation to generation or person/collective to person/collective--it doesn't really matter except to those who embrace them); and that (5) their manifestation in those rules through which the state of nature can be maintained or achieved is undertaken through law as text or expression; and that (6) those texts are bound up in and as the institutions of humanity charged with their elaboration, perfection and administration; and that (7) it is in those spaces that humanity both evidences its own flaws and imperfection, and yet strives to develop subsystems of correction for the detection and correction, from time to time, of the imperfect relationship between human expressions of law their administration, and their application in specific instances; and that (8) therefore all law may be understood as a textualized rationalization of administrative discretion divided within an apparatus built for managing and directing human behaviors singly and collective.
That, at any rate, is a theory; a cognitive baseline, around which human institutional behavior may be understood, and, perhaps, judged.
And it is a theory a part of the expression of which was considered and elaborated in the quite interesting (I use that term in its neutral sense) of the judges of the High Court of the Hong Kong SAR in Ma Chun Man (馬俊文) v. Commissioner of Correctional Services CACV 4/2025, [2025] HKCA 585. The High Court summarized the core issues well (¶¶ 2-5):
This appeal concerns the decision made by the Commissioner of Correctional Services (“the Commissioner”) dated 25 March 2024 of not referring the applicant’s case to the Post-Release Supervision Board (“the Supervision Board”) for consideration of early release under section 6(3A) of the Post-Release Supervision of Prisoners Ordinance (“PRSPO”) (“the Decision”). In the Amended Form 86, the applicant contends that section 6(3A) of the PRSPO and rule 69(1A) of the Prison Rules(“PR”), which were introduced by the Safeguarding National Security Ordinance (“SNSO”) on 23 March 2024, are unconstitutional, contrary to various articles of the Basic Law and the Hong Kong Bill of Rights (“BOR”). He further complains that the Decision (1) is in breach of his legitimate expectation that an early release would be granted subject to disciplinary penalties;[9] (2) is tainted by procedural unfairness, (3) is Wednesbury unreasonable and entails a breach of the Commissioner’s Tameside duty;and (4) is irrational and disproportionate. The Judge granted leave to apply for judicial review on the ground of procedural unfairness only but dismissed the judicial review after considering the evidence and the parties’ submissions. He refused to grant leave on other grounds, finding that none of them is reasonably arguable. Before us, the applicant limits the constitutional challenge to section 6(3A) of the PRSPO only. The contention now advanced is that it infringes his right to liberty in breach of article 5(1) of the BOR (“BOR 5(1)”) because it falls foul of the “established by law” requirement. He maintains his complaints that the Decision is tainted by procedural unfairness and in breach of his legitimate expectation.The judgement was equally clear.
First, the Court re-enforced its judgment that early release was entirely a matter of discretion vested in the Commissioner. That is set out mostly at text (¶¶ 39-43; 46) the key points of which might be these (with my emphasis) added:
C7. Early release not a right but discretion: 39. It is well-established that early release on supervision is not a sentence as such but a measure of executing a sentence. The former involves the court’s exercising its judicial power in its sentencing jurisdiction. The latter involves executive clemency, as a form of justified non-judicial intervention in appropriate cases to pursue legitimate policy aims, to encourage rehabilitation and re-integration into society of offenders who have been sufficiently punished and who no longer continue to be a risk to the public. * * * It is entirely a matter of the executive’s discretion and, in the present context, to be exercised by the Supervision Board under the PRSPO scheme. 40. As a form of indulgence, the executive clemency to grant early release does not confer on a prisoner any right or automatic entitlement to early release or remission upon serving two-thirds of the actual term of his sentence. * * * .
D. The PR scheme: 41. For completeness, the scheme of remission of sentence may be briefly described thus. It is contained in rule 69 of the PR. 42. Under sub-rule (1), a prisoner serving a sentence of imprisonment of an actual term of more than 1 month may be granted remission in accordance with rule 69 on the ground of his industry and good conduct. * * * [B]efore the addition of an offence endangering national security to Schedule 1 of the PRSPO on 23 March 2024, rule 69 did not apply to an OENS PIC such as the applicant. Thereafter, it does only if section 7(3) of the PRSPO is triggered.
43. Similar to the PRSPO scheme after the enactment of SNSO, an OENS PIC is treated differently: “69. Remission of sentence … (1A) However, if a prisoner serves a sentence in respect of the prisoner’s conviction of an offence endangering national security, the prisoner must not be granted remission under subrule (1) unless the Commissioner is satisfied that the prisoner’s being granted remission will not be contrary to the interests of national security. * * * (1C) If a prisoner is not granted remission because of a decision made by the Commissioner under subsection (1A), the Commissioner must, after making the decision, review the decision annually. ” * * * 46. Like an early release on supervision under the PRSPO scheme, remission is a measure of executing a sentence. It is entirely a matter of executive discretion which does not confer any right or entitlement on a prisoner to be released upon serving two-thirds of his sentence.
And yet the Court's generalization is not entirely correct by the Court's own terms. The Court itself recognized that both the granting of the Commissioner's discretionary authority, and the manner of its exercise were intimately bounded by law:
"45. Similar to an assessment under sections 6(3A) to (3C) of the PRSPO, in making a decision under sub-rule (3), the Commissioner carries out an evaluative and predictive assessment according to all the relevant information available to determine if remission to the OENS PIC would or would not be contrary to the interests of national security. Since in making that decision the Commissioner has a duty to safeguard national security, he must regard national security as the most important factor, and give appropriate consideration to it accordingly, as required by section 8(3) of the SNSO.The question in these cases, as one is beginning to see, in cases of the exercise of administrative discretion worldwide, is not whether the official may make the discretionary decision--but whether that decision was made under law. And that determination consists of two determinations: (1) whether the exercise of discretion was one vested in the official by law, and (2) whether the exercise of discretion was undertaken lawfully (that is in the manner prescribed by law). One might imagine that had the Commissioner asked a Tarot Card (with no offense meant to those practitioners skilled in this art) reader to make an assessment if the national security risk of the petitioner, that the judges of the High Court might have been moved to consider whether the Commissioner abused his authority. On the other hand, perhaps a Tarot Card reading meets the criteria of evaluative and predictive assessment within the meaning of the previsions. That question may be resolved sometime in the future. And, indeed, there may be much space for development in the Hong Kong SAR of codification of rules of public misconduct (e.g., Sin Kam Wah v HKSAR (2005) 8 HKCFAR 192) into rules of abuse of discretion beyond the ancient application to corruption. One might imagine a scheme in which it is possible to understand corruption to the integrity and public working of the Chinese rule of law system as itself a serious element of corruption and within an offense. But that lies well into the future when it comes to official misconduct under law. And that brings us back to the image with which this post starts--that of Tang Dynasty Judge Di Renjie. In a system where discretionary decision making gives expression to the law, the corruption of officials becomes an increasingly important responsibility for the judge who must see to it that the law is properly applied by officials.
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The Court, following counsel's lead, took the point up this way--by considering the petitioner's argumen that "As required by BOR 5(1), the applicant’s right to liberty can only be deprived on such grounds as established by law. However, the threshold in section 6(3A) of the PRSPO based on the interests of national security falls foul of the “established by law” requirement." (Ma Chun Man, supra, ¶49).
In developing his argument, Mr Kwan contends that the fatal flaw in the definition of “national security” in section 4 of the SNSO, applicable to section 6(3A), is that it relies on the statutory definition of national security alone to satisfy the “established by law” requirement. It does not have any other safeguards. It requires no prior judicial supervision. It does not involve assessment by an independent board with professional or lay members such as the Assessment Board. It does not state on what basis and evidential threshold must the Commissioner be satisfied that any early release of prisoner will not be contrary to the interests of national security. It does not have any internal review or appeal mechanism.(Ibid., ¶63).
The Court opined that the definition of national security " is broad but not inherently vague or arbitrary as complained" (Ibid., ¶ 66). More importantly, it sketched, if only abstractly, the outer parameters of the constraints against which abuse of discretion (or public official misconduct) might be brought:
68. Lastly, contrary to Mr Kwan’s submissions, the definition in section 4 entails evaluations and assessments based on relevant facts and information objectively available. The result is not as subjective, arbitrary or capricious as contended. * * * 70. Take prior judicial scrutiny first. It is axiomatic that the executive, and not the court, is constitutionally tasked with the responsibility for assessing and addressing risks to national security. The executive, and not the court, is also the best institution to carry out the evaluative and predictive assessment on national security. For it has the requisite experience, expertise, resources and access to information and intelligence for the exercise. See Secretary for Justice v Persons Conducting in Acts Prohibited Etc (274/2023, 303/2023) (Use of Protest Song) [2024] 3 HKLRD 32, per Poon CJHC at [52]. For these reasons, there is nothing objectionable not to engage any prior judicial scrutiny for the assessment under section 6(3A). 71. Turning to an independent board, as we understand his submissions, in drawing the comparison with the Supervision Board, Mr Kwan seems to have suggested that the Assessment Board should also include judges, legal professional and lay members. However, as seen, the executive is the only authority qualified to carry out the assessment on national security. Those suggested non-government individuals lack the requisite expertise or experience to do so. Not including them in the Assessment Board is quite understandable. 72. The complaint about lack of basis and evidential burden for the assessment ignores the nature of the evaluative and predictive assessment on national security. In terms of basis, the Commissioner must take into account all the relevant information in carrying out the assessment. Further, as is well-settled, such an assessment does not engage any evidential burden as such: Secretary of State for the Home Department v Rehman, per Lord Steyn at [29]. 73. Finally, on review, section 6(3C) of the PRSPO does in fact require the Commissioner to carry out a review of his decision of non-referral under section 6(3A) annually. Mr Kwan again seems to have suggested that the review should be done by an independent board consisting of non-government members like the Supervision Board. However, that suggestion cannot stand for the reasons set out at [71] above. Moreover, if aggrieved, an OENS PIC may apply for judicial review against the Commissioner’s decision provided that he can bring his case within the permissible parameters for so doing: see generally Secretary for Justice v Persons Conducting in Acts Prohibited Etc (274/2023, 303/2023) (Use of Protest Song), supra, at [59] – [61]. That would provide a useful check over any arbitrary exercise of the power by the Commissioner.
Pix credit here
This is a high bar indeed, especially if the HKSAR Courts defer to the assessment of evidence by officials and defer as well to the choices made about which evidence to include and exclude in such assessments. The reference to the deference standards in Secretary for Justice v Persons Conducting in Acts Prohibited Etc (274/2023, 303/2023) reinforce the deference standard and now clearly apply it broadly to all aspects of all areas touched ny the National Security Law.
As a general matter, and with varying degrees of where the deference line is drawn, that is not unique to HK or as a basis for creating a system of protection of discretionary decisions of officials (eg here)--these officials are free to be wrong, or rather to make less than the perfect judgement, as an absolute matter and protected in their right to make bad as well as good decisions--because the law shifts the risks (and burdens/benefits) of a large amount of administrative incompetence (and competence to be sure) onto the objects of judgment. That is also fairly common--and it is certainly the basis for the enterprise of judging as well. The only question--and it is the perennial question--is the outer boundaries of the tolerance of imperfection. Sometimes that is clothed in the language of plausibility--that is that a decision is plausibility based on a minimally satisfactory gathering of evidence and reasoning. But it does tend to hide (and at the borders protect or encourage) incompetence--or worse--something that systems have long determined is worth bearing collectively, for some version of the greater good.
In this case, of course, HKSAR has an alternative should it choose to value, for reasons inherent in its own system and from its own political values, some disciplinary element in the assessment of administrative decisions. It is one that the Court itself appeared to hint at. The burden here, to protect against incompetence, or worse, and to ensure the proper functioning of the law through exercises of discretion by officials rests not with the courts but with the Executive to which the courts now defer. It is to the system of discipline, inspection and supervision that it may be that an aggrieved individual must protest. And yet that is something for the future--perhaps the near future--for the HKSAR. Still, the forms and practices of inspection and supervision are not unknown (eg here). It may be time for Hing Kong, within its own systemic parameters, to develop a robust variation of the model offered by China's Central Commission for Discipline Inspection (CCDI), one where corruption might be understood to include abuse of administrative authority, and discipline might be extended to performance discipline and supervision, with a facility for citizen complaints.
We end back where we started--the necessary disjunction between the aspirational perfection of the idea of law and its incarnation in humans and human institutions, and its reality that reflects and is embedded in all things human. Perhaps the machines and silicon based intelligence is the way to resolve this fundamental contradiction between aspiration and capacity, that is between what our nature aspires to and what it is capable of (see a much longer theoretical discussion here). Certainly the move to smart cities, smart courts, and perhaps smarter humans points in that direction. And yet all things touched by the human are also touched (and sometimes animated by) the human spirit. This case suggests the way that this human spirit finds itself embedded in the great human machinery in which aspiration are molded into reality.
The full text of the opinion in Ma Chun Man v. Commissioner of Correctional Services CACV 4/2025, [2025] HKCA 585 follows below.
CACV 4/2025, [2025] HKCA 585
On appeal from [2024] HKCFI 3531
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 4 OF 2025
(ON APPEAL FROM HCAL NO 979 OF 2024)
________________
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BETWEEN |
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| MA CHUN MAN | Applicant | |
| and | ||
| COMMISSIONER OF CORRECTIONAL SERVICES | Respondent | |
________________
| Before: | Hon Poon CJHC, Pang and Anthea Pang JJA in Court |
| Date of Hearing: | 16 May 2025 |
| Date of Judgment: | 24 June 2025 |
________________________
J U D G M E N T
________________________
Hon Poon CJHC (giving the Judgment of the Court):
1. This is an appeal from the judgment of Alex Lee J (“the Judge”) dated 6 December 2024.[1]
A. Introduction
2. This appeal concerns the decision made by the Commissioner of Correctional Services (“the Commissioner”) dated 25 March 2024 of not referring the applicant’s case to the Post-Release Supervision Board (“the Supervision Board”) for consideration of early release under section 6(3A) of the Post-Release Supervision of Prisoners Ordinance[2] (“PRSPO”) (“the Decision”).[3]
3. In the Amended Form 86,[4] the applicant contends that section 6(3A) of the PRSPO and rule 69(1A) of the Prison Rules[5] (“PR”), which were introduced by the Safeguarding National Security Ordinance[6] (“SNSO”) on 23 March 2024, are unconstitutional,[7] contrary to various articles of the Basic Law and the Hong Kong Bill of Rights (“BOR”).[8] He further complains that the Decision (1) is in breach of his legitimate expectation that an early release would be granted subject to disciplinary penalties;[9] (2) is tainted by procedural unfairness,[10] (3) is Wednesbury unreasonable and entails a breach of the Commissioner’s Tameside duty;[11] and (4) is irrational and disproportionate.[12]
4. The Judge granted leave to apply for judicial review on the ground of procedural unfairness only but dismissed the judicial review after considering the evidence and the parties’ submissions. He refused to grant leave on other grounds, finding that none of them is reasonably arguable.
5. Before us, the applicant limits the constitutional challenge to section 6(3A) of the PRSPO only.[13] The contention now advanced is that it infringes his right to liberty in breach of article 5(1) of the BOR (“BOR 5(1)”) because it falls foul of the “established by law” requirement.[14] He maintains his complaints that the Decision is tainted by procedural unfairness and in breach of his legitimate expectation.[15]
B. Background facts
6. The background, which forms the factual matrix for our discussion, may be summarized as follows.[16]
7. The applicant is a prisoner convicted of a charge of incitement to session, contrary to articles 20 and 21 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region. He was on 11 November 2021 sentenced to 5 years and 9 months’ imprisonment, later reduced to 5 years upon appeal.[17] The length of his sentence is treated as reduced by the period during which he was remanded pending trial of the charge since 24 November 2020.[18] Taking into account such reduction, he would have served approximately two-thirds of the sentence by the latter part of March 2024.
8. Before the SNSO came into effect on 23 March 2024, the Correctional Services Department (“CSD”) maintained a general practice under the statutory regime for remission of sentence that a person in custody (“PIC”) might be granted remission on the ground of his industry and good conduct after serving two-thirds of his sentence.[19] The practice would have been applicable to the applicant.[20] Indeed, at an interview held on 24 February 2024, Superintendent Lo Ho Kuen of the CSD (“Superintendent Lo”) informed the applicant that his then computed expected date of discharge was 25 March 2024, which was subject to “industry and good conduct” and the Commissioner’s discretion; and to any change until the day he was actually discharged.[21]
9. Since the SNSO came into effect on 23 March 2024, under section 6(3A) of the PRSPO, the Commissioner must not refer to the Supervision Board for its consideration of remission of cases of persons in custody serving sentences in respect of their convictions of offence(s) endangering national security (“OENS PIC”) unless he is satisfied that it will not be contrary to the interests of national security. In a similar vein, under rule 69(1A) of the PR, an OENS PIC must not be granted remission unless the Commissioner is satisfied that his being granted remission will not be contrary to the interests of national security.
10. National security is defined in section 4 of the SNSO thus:
“In this Ordinance and any other Ordinance, a reference to national security is a reference to the status in which the state’s political regime, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major interests of the state are relatively free from danger and internal or external threats, and the capability to maintain a sustained status of security.”[22]
It is common ground that the above definition of national security applies to section 6(3A) of the PRSPO and rule 69(1A) of the PR.
11. In anticipation of such changes to the remission scheme, the Commissioner had since early March 2024 directed that preparatory works be done to establish the relevant mechanism and guidelines. Specifically, the Commissioner directed that the Board of Assessment on Person in Custody Having Committed Offence Endangering National Security (“the Assessment Board”) be established. Its task is to:
(1) conduct a holistic review of the rehabilitation progress of the OENS PIC, in particular, his progress on de-radicalization, psychological reconstruction and re-establishment and rebuilding positive values;
(2) assess the institutional behaviour and discipline of the OENS PIC;
(3) assess the available information on the tendency to recommit similar offence and risk to national security upon release of the OENS PIC; and
(4) make recommendation to the Commissioner on whether granting remission or early release of the OENS PIC will not be contrary to the interests of national security, under the relevant statutory regime.
12. The Assessment Board was duly established on 21 March 2024. Its members are drawn from the CSD, consisting of a senior superintendent as chairman; two superintendents and a senior clinical psychologist, with a senior CSD officer as secretary. Each member would focus on different aspects of review based on their respective expertise and background.
13. According to the undisputed evidence of Superintendent Fung Chun Yuen (“Superintendent Fung”), chairman of the Board:[23]
(1) As a matter of practice, on reception of each person in custody (“PIC”), CSD records his sentence period in its system and “the last date of discharge”[24] and “the earliest date of discharge”[25] (“EDD”) are computed automatically for CSD’s reference only, without however conferring on the PIC any right or entitlement.
(2) When an OENS PIC approaches his computed EDD, the Assessment Board will carry out its review and assessment before then. As chairman, Superintendent Fung will convene meetings with other members to discuss the case who will individually conduct their own review and assessment.
(3) The Assessment Board will then consider the assessment and all information available, and take into account the OENS PIC’s individual circumstances and all relevant factors that may have a bearing on whether granting remission or early release will not be contrary to the interests of national security. Such factors include whether the OENS PIC has the determination to turn over a new leaf, his tendency to recommit similar offence and the national security risk that may otherwise be posed after his discharge. It would often require the consideration of matters such as the OENS PIC’s background, institutional behavior, rehabilitation progress, and psychological assessment.
(4) Based on the above considerations, the Assessment Board comes up with its recommendation to the Commissioner with respect to whether granting remission or early release will not be contrary to the interests of national security.
(5) The Commissioner will then decide whether he is satisfied that the OENS PIC’s early release will not be contrary to the interests of national security, taking into account the Assessment Board’s recommendation, the OENS PIC’s representations (if any), his individual circumstances, all information available and all relevant factors including those set out above.
(6) By the nature of things, threats to national security may vary in character and may be unanticipated or difficult to define in advance. It is therefore not reasonably practicable to set out exhaustively all relevant factors or matters that the Assessment Board or the Commissioner will consider.
14. On 23 March 2024, the Assessment Board considered the applicant’s case. Members of the Board based their assessments on all the information available and took into account the applicant’s individual circumstances and all relevant factors, including the following matters:
(1) His institutional behaviour. During his incarceration, the applicant wrote on the wall of his cell at Lai Chi Kok Reception Centre “香港獨立，唯一出路，光復香港，時代革命”, transliterated as “independence of Hong Kong, the only way out, liberate Hong Kong, revolution of our time”, and signed as “第二代美國隊長”, transliterated as “Captain America No. 2”, the nickname he used during the 2019 social turmoil. To maintain good order and discipline, he was removed from association under rule 68B of the PR between 29 December 2020 and 19 March 2021. Also during his incarceration, he had contacts with people involved in “the black clad violence”. Based on available information, he would continue to stay in contact with those people involved in “the black clad violence” who hold similar ideologies.
(2) His rehabilitation progress. Upon admission, the applicant was arranged to join different rehabilitation programmes to meet his rehabilitation needs. However, he was unenthusiastic towards those programmes. He behaved indifferently and rarely disclosed his personal feeling during those programmes. He demonstrated no sense of remorse for committing the offence. He had no career planning after discharge. His determination to turn over a new leaf remained to be seen.
(3) His psychology. The applicant did not show major psychopathology and no considerable cognitive impairment was detected. He showed progressive improvement in family relationship and insight into his problems.
15. After deliberation and collective assessment, the Assessment Board was not satisfied that early release of the applicant would not be contrary to the interests of national security. It decided to make a recommendation to the Commissioner that (a) he should not be satisfied that his early release would not be contrary to the interests of national security; and (b) his case should not be referred to the Supervision Board for consideration for early release upon supervision.
16. At around 5:20 pm on the same day, Superintendent Fung informed Superintendent Lo of the Assessment Board’s recommendation and the considerations it took into account in arriving at the recommendation. At around 5:30 pm, Superintendent Lo in an interview with the applicant, told him that under section 6(3A) of the PRSPO, since he is an OENS PIC, the Commissioner must not refer his case to the Supervision Board for consideration unless he is satisfied that his early release would not be contrary to the interests of national security. The Assessment Board had considered his case including the factors listed at [14] above and would make the above recommendation to the Commissioner. He could make representation to the Commissioner by 24 March 2024 before the Commissioner made his decision.
17. Superintendent Lo then gave the applicant a “Notice to Prisoner that the Case must not be referred to the Post-Release Supervision Board for the Consideration of an Early Release and to Give Opportunity to Make Representation” dated 23 March 2024 (“Notice”). He also read out the content written in Chinese to the applicant. When asked to sign on the Notice to acknowledge receipt, the applicant said he was not sure if he would submit the written representation and therefore he wanted to sign it on 24 March 2024. As he showed low mood, Superintendent Lo arranged him to be admitted to the centre hospital for observation.
18. On 24 March 2024, the applicant was interviewed by a Chief Officer in the presence of a Principal Officer at the centre hospital. He indicated in writing on the Notice that he would make representation to the Commissioner on 25 March 2024. He then signed on the Notice.
19. At around 9 am on the 25 March 2024, the applicant submitted a one-page written representations to the Commissioner (“Representations”). In gist:
(1) He acknowledged he had posed national security risk at the early stage of his imprisonment. He explained that he posed national security risk as: (i) he had written slogan advocating Hong Kong independence on the wall of his prison cell, (ii) shouted slogan during court appearance, and (iii) in his plea for a lenient sentence to the sentencing court, he expressly stated that he had no remorse at all (“毫無悔意”).
(2) He explained that through psychological therapy provided to him, his risk to national security gradually decreased. From a family counselling session, he reconciled with his parents and gained an understanding of the importance of family. He felt ashamed and regretful towards his family for his incarceration, and promised to take care of his parents in their old age after release.
(3) He met with a Christian pastor who shared with the Applicant his own testimony of being incarcerated. He then attended a Christian program at the pastor's suggestion. He through the program met God and learnt that the meaning of life is to glorify God. From that point onward, his life had a new meaning and he made the decision to believe in the Lord.
(4) He attended a timber work program at Tong Fuk Correctional Institution and obtained a “semi-skilled worker” licence, and wished to become a construction worker after discharge. He was 34 years old and still had no girlfriend. He wished to start a family.
(5) He expressed remorse, and acknowledged that there is no way he can resist in Hong Kong’s current state, and there is no choice but to accept reality (“亦明白到現今之香港環境已無法反抗，唯有接受現實”).
20. At around 1:35pm, Superintendent Lo gave the applicant a copy of “犯危害國家安全罪行的在囚人士評審委員會就個案向懲教署署長提交的考慮撮要” (“Summary of Considerations”), setting out the details of the Assessment Board’s considerations of his case as outlined above. The applicant signed on it to acknowledge receipt. Superintendent Lo explained to him if he wished to make further representation to the Commissioner, he could do so in writing by the end of the day. Otherwise, the Commissioner would proceed to decide if he should refer his case to the Supervision Board for consideration. The applicant said he would consider whether to make further representation after studying the Summary of Considerations. At around 3 pm, the applicant confirmed in writing in a document entitled “Prisoner Submission” that he had no further representation to make.
21. The Assessment Board then submitted its recommendation and supporting materials together with the applicant’s representation to the Commissioner. In the late afternoon of 25 March 2024, the Commissioner made the following decision (“the Decision”):
“The submitted representation has been scrutinized. Although [the applicant] had participated in psychological counselling and religious activities, etc., there is insufficient information to show that he has fully rehabilitated, de-radicalized, demonstrated any genuine remorse or renounced his secessionist and radical ideology. Importantly, in the last paragraph of his written representation, he stated that 「亦明白到現今之香港環境已無法反抗，唯有接受現實」which clearly reflected that [the applicant] was only making a compromise due to the actual situation of Hong Kong but did not show any genuine remorse for his offence against national security. If the opportunity to “resist” presents itself in the future, the risk of [the applicant] committing acts and activities endangering national security cannot be satisfactorily ruled out.
Having regard to the recommendation of [the Assessment Board] and supporting materials, the circumstances of [the applicant’s] case, all relevant factors and the representations made by him on 25 March 2024, I am not satisfied that an early release of the prisoner will not be contrary to the interests of national security. According to section 6(3A) of [the PRSPO], I must not refer [the applicant’s] case to the [Supervision Board] for consideration.”
C. The PRSPO scheme
22. We now come to the statutory scheme for early release on supervision of prisoners under the PRSPO. It forms the legal matrix for our discussion of the constitutional challenge based on BOR 5(1).
23. The PRSPO was enacted on 30 November 1996 to make provisions for the release under supervision of specified categories of prisoners. The scheme has the following main features.
C1. Application
24. Section 3(1)(b) stipulates that the PRSPO applies to every prisoner who is serving a sentence of a kind specified in regulations made under section 23. The regulation thus made is regulation 2 of the Post-Release Supervision of Prisoners Regulation (“PRSPR”).[26] Relevantly, regulation 2(b)(i) covers “a sentence of imprisonment of 2 years or more but less than 6 years in respect of a conviction for any of the offences specified in Schedule 1.”
25. The specified offences listed in Schedule 1 are divided into 8 categories. The first 7 categories cover broadly offences of violence, serious sexual offences, triad related offences, robbery, aggravated burglary, blackmail, and offences with explosives or to do with explosives. They are offences from which the public are in particular need of protection, and offences which would appear in many cases to be a kind in respect of which the offender might be at risk of recidivism: Lui Tat Hang Louis v The Port-Release Supervision Board [2010] 1 HKC 297, per Stock J (as he then was) at [11]. The 8th category, added by the SNSO, is an offence endangering national security. The above observation by Stock J on the nature of offences covered by Schedule 1 is equally apt for such an offence.
C2. Supervision Board
26. The Supervision Board is established under section 4. It consists of members appointed by the Chief Executive including two judges, representatives of the Commissioner and the Commissioner of Police, a medical doctor, a psychologist, a practicing barrister or solicitor experienced in criminal law, and a person who has experience of or active interest in the rehabilitation of offenders.
27. Section 5(1) sets out the functions of the Supervision Board. It has to consider, among other things, whether any prisoner to whom the PRSPO applies should be granted early release under supervision and if so, to order his release in accordance with the PRSPO. Section 5(2) requires the Supervision Board, in discharging its functions, to have regard to the desirability of securing prisoners’ rehabilitation and their re-integration into society; and the need to protect the public from serious harm from offenders.
C3. Objectives of the scheme
28. Section 5 informs the purpose of the PRSPO and the objectives of its statutory scheme. It serves the dual purposes of, on the one hand, helping prisoners, many of whom have been separated from society because of long incarceration and hence have difficulty in adjusting their life after discharge, to rehabilitate and re-integrate into society, thereby discouraging them from re-offending; and on the other, offering reasonable protection to the public from threats to public safety by hard-core criminals or recidivists after discharge, by a supervision order: Lui Tat Hang Louis, supra, per Stock J at [35]; Ng King Tat Philip v The Post-Release Supervision Board [2011] 1 HKC 34, per Andrew Cheung J (as he then was), at [60] – [61].
C4. Supervision Board’s power to making a supervision order
29. To properly discharge its functions and to pursue the objectives of the scheme, the Supervision Board takes into account a host of factors pertaining to and focusing on the prisoner’s rehabilitation and re-integration to society, and recidivist risks.
30. Section 6(1) empowers the Board to order a prisoner’s early release subject to supervision if it appears that he should be granted early release on the ground of his industry and good conduct. Under section 6(2), an order for early release with supervision of a prisoner may be made at any time after he has served not less than two-thirds of the total of the actual term of his sentence.
C5. Referral by the Commissioner
31. Section 6(3) importantly provides:
“The Commissioner shall refer to the Board for its consideration under this section the case of any prisoner to whom this Ordinance applies, together with a report and his recommendation concerning the prisoner.”
32. By using the word “shall”, section 6(3) imposes a duty on the Commissioner to refer to the Supervision Board for its consideration the case of any prisoner to whom the PRSPO applies, including those covered by Schedule 1. Correspondingly, subject to one important caveat, a prisoner whose case falling within Schedule 1 has a statutory right to have his case referred by the Commissioner to the Supervision Board for consideration. The caveat, which must be firmly borne in mind, is this.
33. Before the addition of the 8th category by the SNSO, the specified offences in Schedule 1 did not include an offence endangering national security. In other words, section 6(3) did not apply to an OENS PIC before 23 March 2024. After 23 March 2024, the case of an OENS PIC is, in addition to section 6(3), governed by sections 6(3A) to (3C) as well:
“(3A) However, if a prisoner serves a sentence in respect of the prisoner’s conviction of an offence endangering national security, the Commissioner must not refer to the Board for its consideration under subsection (3) the case of the prisoner unless the Commissioner is satisfied that an early release of the prisoner will not be contrary to the interests of national security.
(3B) To avoid doubt, subsection (3A) applies whether the sentence of the prisoner mentioned in that subsection was imposed before, on or after the commencement of that subsection.
(3C) If the Commissioner decides under subsection (3A) not to refer to the Board for its consideration the case of the prisoner, the Commissioner must, after making the decision, review the decision annually.”
34. Evidently, the legislative intent of those provisions is that an OENS PIC is to be treated differently from other PICs to whom the PRSPO applies because of the immense importance to safeguard the interests of national security that may be threatened or put to risk by his early release. As explained in the Legislative Council Brief for the amendments introduced by the SNSO dated 8 March 2024:[27]
“There have been cases in which prisoners convicted of offences endangering national security absconded or continued to carry out acts and activities endangering national security when they were granted early release under supervision. The granting of early release is never a necessary right to prisoners. In order to safeguard national security and protect the public, it is necessary to impose more stringent restrictions on the granting of early release to prisoners involved in offences endangering national security. … The relevant provisions are not punitive measures, and it does not increase the length of sentence of the prisoners and is not applicable to prisoners already granted with early release. …” (Emphasis supplied)
35. Reading subsections (3) and (3A) together purposively, the statutory right of an OENS PIC to a referral under subsection (3) is not engaged until and unless the Commissioner is satisfied that his early release will not be contrary to the interests of national security under subsection (3A). If the Commissioner is so satisfied, he must then refer the case to the Supervision Board for consideration.
36. Under subsection (3A), the Commissioner carries out an evaluative and predictive assessment according to all the relevant information available to determine if the early release of an OENS PIC, even on supervision, would or would not be contrary to the interests of national security, and then decide to or not to refer his case to the Supervision Board. In a sense, whether remission would be contrary to the interests of national security is the determinative factor in that if the Commissioner is not so satisfied, he must not make the referral. Plainly, in making that decision, the Commissioner has a duty to safeguard national security. Thus, as mandated by section 8(3) of the SNSO,[28] he must regard national security as the most important factor, and give appropriate consideration to it accordingly.
C6. Making of a supervision order and release
37. A supervision order made by the Supervision Board shall contain the particulars set out in section 7(1). It shall be signed by the chairman of the Supervision Board and served on the Commissioner: section 7(2). When the Supervision Board decides to make no supervision order it shall inform the Commissioner accordingly: section 7(3). A supervision order shall be subject to the prisoner’s industry and good conduct prior to his release, and may be reviewed by the Supervision Board at any time before his release: section 7(4).
38. Upon service of the supervision order on the Commissioner, the prisoner’s release shall take effect subject to the supervision order: section 8(1). A prisoner who is released from imprisonment subject to a supervision order shall, until its expiration, be subject to supervision by a supervising officer; and comply with the order: section 9. Upon the expiration or discharge of the supervision order, any unserved balance of his sentence shall be deemed to be remitted: section 10.
C7. Early release not a right but discretion
39. It is well-established that early release on supervision is not a sentence as such but a measure of executing a sentence. The former involves the court’s exercising its judicial power in its sentencing jurisdiction. The latter involves executive clemency, as a form of justified non-judicial intervention in appropriate cases to pursue legitimate policy aims, to encourage rehabilitation and re-integration into society of offenders who have been sufficiently punished and who no longer continue to be a risk to the public. Cf. Lau Cheong v HKSAR (2002) 5 HKCFAR 415, per Li CJ and Ribeiro PJ at [149]. It is entirely a matter of the executive’s discretion and, in the present context, to be exercised by the Supervision Board under the PRSPO scheme.
40. As a form of indulgence, the executive clemency to grant early release does not confer on a prisoner any right or automatic entitlement to early release or remission upon serving two-thirds of the actual term of his sentence. See Lui Tat Hang Louis, per Stock JA at [28], [37]; Fu Man Kit v Superintendent of Tai Lam Correctional Institution [2022] 1 HKLRD 219, per Barma JA, at [28], quoting Wong Tak Wai v Commissioner of Correctional Services [2010] 4 HKLRD 409, per Kwan JA (as she then was) at [90] – [91].
D. The PR scheme
41. For completeness, the scheme of remission of sentence may be briefly described thus. It is contained in rule 69 of the PR.
42. Under sub-rule (1), a prisoner serving a sentence of imprisonment of an actual term of more than 1 month may be granted remission in accordance with rule 69 on the ground of his industry and good conduct. The remission granted shall not exceed one-third of the actual term: sub-rule (2). An actual term refers to a term of sentence as computed under section 67A of the Criminal Procedure Ordinance: sub-rule 5(a). Further, no remission shall be granted in respect of a prisoner to whom the PRSPO applies unless the Commissioner has been informed pursuant to section 7(3) of the PRSPO that no supervision order is to be made in respect of him: sub-rule (4B). Thus, before the addition of an offence endangering national security to Schedule 1 of the PRSPO on 23 March 2024, rule 69 did not apply to an OENS PIC such as the applicant. Thereafter, it does only if section 7(3) of the PRSPO is triggered.
43. Similar to the PRSPO scheme after the enactment of SNSO, an OENS PIC is treated differently:
“69. Remission of sentence
…
(1A) However, if a prisoner serves a sentence in respect of the prisoner’s conviction of an offence endangering national security, the prisoner must not be granted remission under subrule (1) unless the Commissioner is satisfied that the prisoner’s being granted remission will not be contrary to the interests of national security.
(1B) To avoid doubt, subsection (1A) applies whether the sentence of the prisoner mentioned in that subsection was imposed before, on or after the commencement of that subsection.
(1C) If a prisoner is not granted remission because of a decision made by the Commissioner under subsection (1A), the Commissioner must, after making the decision, review the decision annually. ”
44. Plainly, those sub-rules are underpinned by the same legislative intent for sections 6(3A) to (3C) of the PRSPO as set out at [34] above. In fact, the LegCo Brief mentioned also covered them.
45. Similar to an assessment under sections 6(3A) to (3C) of the PRSPO, in making a decision under sub-rule (3), the Commissioner carries out an evaluative and predictive assessment according to all the relevant information available to determine if remission to the OENS PIC would or would not be contrary to the interests of national security. Since in making that decision the Commissioner has a duty to safeguard national security, he must regard national security as the most important factor, and give appropriate consideration to it accordingly, as required by section 8(3) of the SNSO.
46. Like an early release on supervision under the PRSPO scheme, remission is a measure of executing a sentence. It is entirely a matter of executive discretion which does not confer any right or entitlement on a prisoner to be released upon serving two-thirds of his sentence.
E. BOR 5(1)
47. Having laid down both the factual and legal matrices, we now turn to the applicant’s case on BOR 5(1).
48. BOR 5(1) provides:
“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”
E1. The applicant’s arguments
49. Mr Steven Kwan, for the applicant, takes three main points:
(1) Although the sentence passed on the applicant is lawful, it does not mean that there is no deprivation of his liberty. The deprivation continues as long as he is imprisoned.
(2) Under section 6(3) of the PRSPO, the applicant has a statutory right to have his case referred by the respondent to the Supervision Board for consideration. Mr Kwan accepts that that right in itself is not a fundamental right. However, section 6(3A) of the PRSPO imposes a threshold on the referral under section 6(3) based on the interests of national security. If that threshold is not passed, as is the applicant’s case, that statutory right to referral is taken away and it represents a loss of opportunity for the Supervision Board to consider his case. Thus, the applicant’s right to liberty under BOR 5(1) is engaged. Mr Kwan relies on Morgan v Ministry of Justice (SC(NI)) [2024] AC 130, [121] – [122] in support.
(3) As required by BOR 5(1), the applicant’s right to liberty can only be deprived on such grounds as established by law. However, the threshold in section 6(3A) of the PRSPO based on the interests of national security falls foul of the “established by law” requirement.
E2. Engagement of the applicant’s right
50. The first two points taken by Mr Kwan raise the prior question if BOR 5(1) is engaged. For the reasons articulated below, we will answer the question in the negative.
51. An imprisonment which the applicant is serving is incarceration pursuant to a sentence lawfully imposed by the court after a criminal conviction. The resultant deprivation of his liberty pursuant to the imprisonment is lawful. As such, it will not per se engage BOR 5(1). So, the first point taken by Mr Kwan does not add much to the analysis at hand.
52. The second point taken by Mr Kwan needs some elaboration.
53. In the course of his oral submissions, Mr Kwan seemed to have suggested that the applicant enjoyed the statutory right to referral under section 6(3) of the PRSPO prior to the enactment of the SNSO but it has been taken away by section 6(3A) since 23 March 2024. However, as seen, Schedule 1 of the PRSPO previously did not contain an offence of endangering national security, which means that the PRSPO simply did not apply to the applicant before 23 March 2024. His case was instead governed by rule 69 of the PR. Insofar as the engagement argument is founded on a suggested previous statutory right to referral, that foundation is erroneous.
54. After 23 March 2024, the PRSPO scheme applies to the applicant. But as observed, sections 6(3) and 6(3A) must be read together purposively. His statutory right to a referral under subsection (3) is not engaged until and unless the Commissioner is satisfied that his early release will not be contrary to the interests of national security under subsection (3A). It does not involve any loss of the statutory right as contended. The engagement argument resting on such a misconceived premise is baseless.
55. Moreover, as seen, whether the Supervision Board will grant an early release is discretionary and does not confer on the applicant any right or entitlement to early release upon serving two-thirds of his sentence. In other words, even if the Supervision Board were to consider his case and decide not to grant an early release, it would not engage his right to liberty. A fortiori, the alleged loss of the statutory right to referral thereby depriving him the opportunity for the Supervision Board to consider his case would not engage his right to liberty either.
56. Lastly, Mr Kwan’s reliance on Morgan, supra, is misplaced.
57. There, the defendants were convicted of various terrorist offences and sentenced to determinate terms of imprisonment pursuant to article 7 of the Criminal Justice (Northern Ireland) Order 2008. In accordance with article 8 of the 2008 Order, the judge specified that the “custodial period” at the end of which each defendant would be released on licence under article 17 of the 2008 Order was one half of the term of his sentence. While the defendants were serving the custodial periods of their sentences, the Counter-Terrorism and Sentencing Act 2021 was introduced in response to two terrorist incidents on the streets of London which the Government considered demonstrated very compelling policy reasons supporting a change to the method of implementation of sentences imposed on terrorist offenders. Section 30 of the 2021 Act inserted article 20A into the 2008 Order, the effect of which was that, instead of being automatically released on licence after serving their custodial periods, the defendants would only be released once they had served two-thirds of the terms of their sentences and the Parole Commissioners had directed their release, which the Commissioners would not do unless satisfied that it was no longer necessary for the protection of the public that the defendants should remain confined.
58. The defendants appealed against their sentences. One of the arguments raised was that the insertion of article 20A into the 2008 Order breached the quality of law requirement in article 5(1) of the European Convention on Human Rights (“ECHR”)[29] under which a national law authorizing deprivation of liberty had to be sufficiently accessible, precise and foreseeable in its application to avoid all risks of arbitrariness.
59. On appeal to the UK Supreme Court, Lord Stephens JSC, after analyzing the statutory scheme of the 2008 Order prior to the 2021 Act, observed that under article 8, an offender shall automatically be released on licence under article 17 at the end of the custodial period specified by the court: [16], [21] and [27]. Further, under article 17(1), as soon as the offender has served the requisite custodial period, the Department of Justice shall release him on licence. In short, the defendants previously had the statutory right to be released after serving the custodial periods. However, as observed by Lord Stephens, at [43], after the insertion of article 20A, release on licence is no longer automatic. Put differently, their right to automatic release is taken away. Therefore their right to liberty is plainly engaged. It is in such context that his Lordship said at [121] and [122] that when a measure relating to the execution of a sentence affects a detention or deprivation of liberty, the measure will be subject to the qualitative requirements of “law” under article 5 of the ECHR.
60. Thus understood, as rightly submitted by Mr Mike Lui, SC, for the Commissioner,[30] Lord Stephens’s remarks at [121] and [122] in Morgan does not support a general proposition that whenever there is a measure affecting the execution of a sentence, it will engage the right to liberty. It must depend on the facts of the case. Here, as explained, sections 6(3) and 6(3A) of the PRSPO do not deprive the applicant of his liberty. Morgan is clearly distinguishable and does not assist him.
61. In conclusion, we hold that the applicant’s right under BOR 5(1) is not engaged. His constitutional challenge against section 6(3A) of the PRSPO must fail in limine.
E3. Requirement of “established by law”
62. In the circumstances, we only need to very briefly deal with the third point taken by Mr Kwan on the requirement of “established by law”.
63. In developing his argument, Mr Kwan contends that the fatal flaw in the definition of “national security” in section 4 of the SNSO, applicable to section 6(3A), is that it relies on the statutory definition of national security alone to satisfy the “established by law” requirement. It does not have any other safeguards. It requires no prior judicial supervision. It does not involve assessment by an independent board with professional or lay members such as the Assessment Board. It does not state on what basis and evidential threshold must the Commissioner be satisfied that any early release of prisoner will not be contrary to the interests of national security. It does not have any internal review or appeal mechanism.
64. We first consider Mr Kwan’s criticisms on the language used in the statutory definition for “national security” in section 4 of the SNSO.[31] Mr Kwan accepts that the reference in the definition to “the status in which the state’s political regime, sovereignty, unity and territorial integrity” is fine. However, he submits that the remainder is inherently vague and incapable of precise definition, and refers to subjective value judgment and not objective facts. With respect, we disagree.
65. It is well accepted that by the nature of things, threats to national security may vary in character and may be unanticipated or difficult to define in advance: Kennedy v United Kingdom (2011) 52 EHRR 4, at [159]. It is equally well-settled that legal certainty principles do not necessarily require a comprehensive definition of the notion of the interests of national security. Many laws, which are by the subject matter required to be flexible, are unavoidably couched in terms which are to a greater or lesser extent vague and whose interpretation and application are questions of practice: Esbester v United Kingdom (1994) 18 EHRR CD 72, at p.CD74.
66. Read against these first principles, the statutory definition of “national interest” in section 4 is broad but not inherently vague or arbitrary as complained. Its purpose is clear. It covers the four key constituents of the state: (1) its political regime; (2) its sovereignty; (3) its unity and territorial integrity; and (4) its people and the society that they live in. It embraces and protects national sovereignty; territorial unity; development, sustainability, economic and other major societal interests; and the well-being of its people. It is broadly framed for good reasons. It avoids over-rigidity which is inadvisable for safeguarding national security. It provides flexibility so that within the board definition, the notion of the interests of national security may evolve with time and adapt to changing realities, thus allowing it to develop to meet not only present but also new threats to national security. Although it is broadly framed, the definition has a sufficiently and clearly formulated core to enable a person, with advice if necessary, to understand what national security covers and to regulate his conduct accordingly: Winnie Lo v HKSAR (2012) 15 HKCFAR 16, per Ribeiro PJ at [74] – [77]; and cf. HKSAR v Tam Tak Chi [2024] 2 HKLRD 565, at [121] – [122].
67. By comparison, it is apparent from the English authorities that the statutory term “national security” in different legislations there has survived the legality challenge even without any definition: see for example, Kennedy, supra, [33]. Mr Lui submits that section 4 of the SNSO provides a clearer reference for the Commissioner to carry out his evaluative and predictive assessment under section 6(3A). In response, Mr Kwan is forced to submit that the statutory definition in section 4 renders the term “national security” more vague and imprecise in local laws. Such a strained submission only serves to demonstrate how hollow his criticisms are.
68. Lastly, contrary to Mr Kwan’s submissions, the definition in section 4 entails evaluations and assessments based on relevant facts and information objectively available. The result is not as subjective, arbitrary or capricious as contended.
69. As to the other matters which he characterizes as “safeguards”, Mr Kwan accepts that they have not been pleaded in the Amended Form 86 or raised before the Judge in the BOR 5 challenge. As such, he cannot rely on them on appeal. In any event, we do not find any substance in them.
70. Take prior judicial scrutiny first. It is axiomatic that the executive, and not the court, is constitutionally tasked with the responsibility for assessing and addressing risks to national security. The executive, and not the court, is also the best institution to carry out the evaluative and predictive assessment on national security. For it has the requisite experience, expertise, resources and access to information and intelligence for the exercise. See Secretary for Justice v Persons Conducting in Acts Prohibited Etc (274/2023, 303/2023) (Use of Protest Song) [2024] 3 HKLRD 32, per Poon CJHC at [52]. For these reasons, there is nothing objectionable not to engage any prior judicial scrutiny for the assessment under section 6(3A).
71. Turning to an independent board, as we understand his submissions, in drawing the comparison with the Supervision Board, Mr Kwan seems to have suggested that the Assessment Board should also include judges, legal professional and lay members. However, as seen, the executive is the only authority qualified to carry out the assessment on national security. Those suggested non-government individuals lack the requisite expertise or experience to do so. Not including them in the Assessment Board is quite understandable.
72. The complaint about lack of basis and evidential burden for the assessment ignores the nature of the evaluative and predictive assessment on national security. In terms of basis, the Commissioner must take into account all the relevant information in carrying out the assessment. Further, as is well-settled, such an assessment does not engage any evidential burden as such: Secretary of State for the Home Department v Rehman, per Lord Steyn at [29].
73. Finally, on review, section 6(3C) of the PRSPO does in fact require the Commissioner to carry out a review of his decision of non-referral under section 6(3A) annually. Mr Kwan again seems to have suggested that the review should be done by an independent board consisting of non-government members like the Supervision Board. However, that suggestion cannot stand for the reasons set out at [71] above. Moreover, if aggrieved, an OENS PIC may apply for judicial review against the Commissioner’s decision provided that he can bring his case within the permissible parameters for so doing: see generally Secretary for Justice v Persons Conducting in Acts Prohibited Etc (274/2023, 303/2023) (Use of Protest Song), supra, at [59] – [61]. That would provide a useful check over any arbitrary exercise of the power by the Commissioner.
74. For the above reasons, we would hold that section 6(3A) of the PRSPO satisfies the “established by law” requirement even if BOR 5(1) were engaged.
F. Legitimate expectation
75. Following the sequence of Mr Kwan’s submissions, we next come to legitimate expectation, which may be disposed of shortly.
76. Mr Kwan complains that prior to the SNSO, the general remission practice adopted by the CSD gave the applicant a legitimate expectation that after serving two-thirds of his sentence and when he is shown to be of good behavior and industry, he could expect the grant of remission or early release subject to any forfeiture. Even after section 6(3A) of the PRSPO, the Commissioner needs to take that legitimate expectation into account in deciding if a referral should be made.
77. However, as pointed out by Mr Lui, such legitimate expectation, even if established, is wholly irrelevant to the assessment based on the interests of national security under section 6(3A). This complaint must fail.
G. Procedural unfairness
78. On procedural unfairness, Mr Kwan contends that the Summary of Considerations ought to have been provided to the applicant before he submitted the Representations to the Commissioner and that he was given too short a time to consider the Summary before he decided not to make any further submissions.
79. We have already set out the events that took place on 25 March 2024 leading to the Decision in some detail. While it could be argued that it would be better had the applicant been given the Summary of Considerations before he submitted the Representations, he had in fact been provided with the Summary before the Commissioner made the Decision. He was also given time to consider it and to make further submission if necessary. The time that he took to do so, which lasted for about 1½ hours, is not insufficient. When the events are viewed in the round, we do not accept that the applicant was prejudiced. He had been given a reasonable opportunity of learning what was alleged against him and of putting his own case in answer to it. His right to sufficient information in the process had not been compromised. The complaint that there was procedural unfairness, while justifying leave to apply for judicial review be granted, must fail in substance.
H. Dispositions
80. In conclusion, we dismiss the applicant’s appeal.
81. Costs should follow event. We therefore make an order nisi that the applicant is to pay the Commissioner costs of the appeal, to be taxed if not agreed, with a certificate for two counsel.
|
(Jeremy Poon) Chief Judge of the High Court |
(Derek Pang) Justice of Appeal |
(Anthea Pang) Justice of Appeal |
Mr Steven Kwan, Mr Albert NB Wong, Mr Jason Ko and Ms Yvonne Leung, instructed by S.T. Cheng & Co, for the Applicant
Mr Mike Lui SC and Mr Martin Ho, instructed by the Department of Justice, for the Respondent
[1] [2024] HKCFI 3531 (“Judgment”), which was handed down after the Judge heard the parties at a rolled-up hearing on 22 and 23 October 2024.
[2] Cap 475.
[3] Before the Judge, the applicant also challenged the Commissioner’s decision communicated to him on 25 March 2024, reversing an earlier representation made to him on 24 February 2024 that he would be granted remission and released on 25 March 2024 (“Reversal Decision”). However, after finding that no such representation was made to the applicant on 24 February 2024, the Judge ruled that the applicant’s judicial review insofar as it is based on the Reversal Decision must fail: Judgment, [67] – [68]. There is no appeal against the Judge’s said finding and ruling. Thus, this appeal only concerns the Decision. Even so, as will be seen in a moment, the scope of the constitutional challenge against the Decision has now been considerably narrowed.
[4] The applicant originally raised 7 grounds of judicial review but later abandoned Ground 4 on ultra vires.
[5] Cap 234A.
[6] Instrument A305.
[7] Grounds 1 and 2.
[8] The Hong Kong Bill of Rights Ordinance, Cap 383.
[9] Ground 3.
[10] Ground 5.
[11] Ground 6.
[12] Ground 7.
[13] Although reference is made to rule 69(1A) of the PR in the declaration sought in the Notice of Appeal, it only concerns the failed challenge against the Reversal Decision. Since the applicant no longer pursues this aspect of his case on appeal, there is no basis for him to launch any constitutional challenge against rule 69(1A). In fact, Mr Kwan, for the applicant (together with Mr Albert Wong, Mr Jason Ko and Ms Yvonne Leung), does not make any submissions on the constitutionality of rule 69(1A) before us.
[14] At the hearing before us and upon our inquiry, Mr Steven Kwan confirms that having regard to the grounds of appeal as set out in the Notice of Appeal and augmented by his written submissions, he would only rely on BOR 5(1). That forms the first ground of appeal.
[15] The second and third grounds of appeal respectively.
[16] The facts set out below are largely taken from the undisputed facts and the factual findings made by the Judge on the factual disputes between the parties, against which there is no appeal.
[17] HKSAR v Ma Chun Man [2022] 5 HKLRD 221; official English translation [2022] 5 HKLRD 246. The date of judgment was 3 August 2022.
[18] Pursuant to section 67A(1A) of the Criminal Procedure Ordinance, Cap 221, which provides that the length of any sentence of imprisonment imposed upon an accused shall be treated as reduced by any period during which he was, immediately prior to his first appearance in court in connection with any proceeding relating to the offence for which the sentence of imprisonment was imposed, in custody.
[19] As found by the Judge, see Judgment, [56].
[20] Judgment, [120].
[21] Judgment, [66] – [67].
[22] In the Note to section 4, reference is made to Article 2 of the National Security Law of the People’s Republic of China, which contains an identical definition of national security.
[23] His affirmation dated 12 August 2024 (“Fung’s Affirmation”), accepted by the Judge as truthful: Judgment, [72], which also made reference to other affirmations filed by his colleagues.
[24] It equals to “PIC’s term of imprisonment minus remand period”.
[25] It equals to “PIC’s term of imprisonment minus remand period minus maximum permissible remission minus forfeited remission”.
[26] Cap 475A.
[27] SBG/3/101/2024, quoted at [57] of the Judgment.
[28] Section 8(3) of the SNSO provides:
“(3) If the law of the HKSAR confers any function on a person—
(a) the function is to be read as including a duty to safeguard national security; and
(b) accordingly, any person, in making any decision in the performance of the function, must regard national security as the most important factor, and give appropriate consideration to it accordingly,
and a reference in any Ordinance in connection with such a function is to be read accordingly.”
[29] Its terms are comparable to BOR 5(1).
[30] Leading Mr Martin Ho.
[31] See the quotation at [10] above.
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