LAU CHEONG AND ANOTHER v. HKSAR

FACC No. 6 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 6 OF 2001 (CRIMINAL)

(ON APPEAL FROM CACC NO. 646 OF 1998)

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J U D G M E N T

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Chief Justice Li and Mr Justice Ribeiro PJ:

1. In this appeal, a challenge is made to the legal and constitutional validity of two aspects of the offence of murder, namely, an intention to cause grievous bodily harm as a sufficient form of mens rea; and life imprisonment as the mandatory penalty under section 2 of the Offences Against the Person Ordinance, Cap 212.

The facts and the decisions below

2. The prosecution's case at the trial was that the appellants, both armed with knives, had acted in concert in robbing the victim Kei Wai-heung. A violent struggle had ensued, during which both the victim and the 2nd appellant had suffered knife injuries. The victim was later found dead, tied up with rope which bound his neck, wrists and legs. His death was found to have resulted, not from the knife wounds, but from ligature strangulation caused by the rope around his neck.

3. The 1st appellant pleaded guilty to robbery and admitted in evidence that he had tied up the victim to prevent him from getting away and taking revenge. However, he denied that he had any intention to kill or cause grievous bodily harm. He was prepared to plead guilty to manslaughter but this was not accepted by the prosecution. He also said that the 2nd appellant had fainted at the material time and did not take part in tying up the victim.

4. The 2nd appellant denied robbery and any participation in causing the victim's death. However, there was evidence, including his possession of the victim's property, blood stains and evidence of contact, which indicated that he had been involved in both the robbery and the events leading to the victim's death. He did not testify but relied on those parts of the 1st appellant's evidence which were favourable to him.

5. At the trial, Mrs Justice Bokhary, delivered a summing-up which the Court of Appeal described as impeccable, in our view rightly so, subject to the legal issues raised in this appeal. In accordance with the usual practice in murder cases, it included the direction that a killing accompanied by an intention to cause grievous bodily harm constitutes murder. In respect of the 2nd appellant, the jury was directed as to participation in a joint enterprise. Although the summing-up inclined markedly towards manslaughter verdicts, the jury convicted both appellants of robbery and murder.

6. The appellants received mandatory sentences of life imprisonment for murder. They were also given concurrent sentences for robbery : 6 years' imprisonment in the case of the 1st appellant (reflecting his guilty plea) and 9 years' imprisonment in the 2nd appellant's case.

7. The Court of Appeal dealt with their appeal in two parts. A number of grounds involving various aspects of the summing-up were dealt with first and rejected in a judgment delivered in June 2000. The second part raised the constitutional issues with which we are now concerned and was adjourned pending the Court of Appeal's decisions in HKSAR v Coady [2000] 2 HKLRD 195; and HKSAR v Pun Ganga Chandra [2001] 2 HKLRD 151, where similar issues had been raised.

8. After publication of those judgments, the Court of Appeal re-convened and, after hearing further submissions, dismissed the appeal (HKSAR v Lau Cheong and Lau Wong [2002] 2 HKLRD 869).

Leave to appeal

9.Leave to appeal to this Court was granted by the Appeal Committee on the basis of four certified questions of law.

10. The first two questions address the mens rea for murder. The appellants seek first to challenge the sufficiency, as a matter of common law, of an intention to cause grievous bodily harm as such mens rea. Secondly, they seek to argue that the grievous bodily harm rule contravenes provisions of the Basic Law and the Bill of Rights which prohibit, among other things, arbitrary detention or imprisonment.

11. The second pair of questions arise in relation to the sentence for murder. The appellants seek here to contend that mandatory life imprisonment falls foul of our constitutional safeguards against arbitrary imprisonment, cruel, inhuman or degrading punishment and inequality before the law. They also seek to contend that such a mandatory sentence violates their constitutional right to a review by a higher tribunal. Furthermore, they allege that the system unconstitutionally denies them access to a court to challenge the lawfulness of their detention.

12. At the hearing of the appeal, the challenges to the grievous bodily harm rule and the mandatory life sentence were made on behalf of the 1st appellant by Ms Audrey Eu SC and her team, instructed by the Director of Legal Aid. The 2nd appellant appeared in person, having declined legal aid representation. He addressed us on points relating to the evidence. Those were points not open to him as the Appeal Committee had only granted leave on points of law. In any event, the points made by the 2nd appellant were of no merit. However, all of Ms Eu's legal arguments are equally relevant to his case.

Grievous bodily harm and the mens rea of murder

13. Criminal liability at common law usually requires proof of relevant prohibited conduct causing certain prohibited consequences (the actus reus), accompanied by a defined state of mind on the part of the accused in relation to that conduct and its consequences (the mens rea).

14. In the case of murder, the actus reus crucially involves causing the death of another person. Of course, if the accused intentionally causes that death, the mens rea requirement is satisfied. However, as the law stands, he may be convicted of murder without ever intending or foreseeing death as the consequence of his acts or omissions. It is sufficient if he intends to cause grievous bodily harm and death in fact results. It is this apparent lack of symmetry between what constitutes the mens rea of the offence and the consequence of death as part of the actus reus that is the subject of criticism.

The mens rea of murder historically

15. Such absence of symmetry has been a feature of the law of murder for centuries. The mens rea of murder (previously referred to as "malice aforethought" in line with Sir Edward Coke's definition of murder : 3 Inst 47) has not been confined to an intention to kill or to states of mind requiring foresight of death as a consequence. The acceptance, in modern law, of an intention to cause grievous bodily harm as sufficient actually represents the culmination of a long process whereby the range of mental states capable of sustaining a murder conviction has been progressively and drastically narrowed down.

16. Accounts of this narrowing process often begin with Coke's view in the 17th century that a person who caused death in the course of performing any unlawful act was guilty of murder. The width and constructive nature of such liability is demonstrated by the following passage in the Institutes :-

17. In the 18th century, Sir Michael Foster limited the doctrine to cases where the unlawful act amounted to a felony (many of which were in any event punishable by death) and, although subject to criticism, the "felony-murder rule" remained an important basis for liability during the 19th century (see Stephen, A History of the Criminal Law of England, Vol 3, p 57; and Stephen's Digest of the Criminal Law, 9th Ed, Art 264(c), p 212). The intention required was therefore not necessarily an intention to kill, but an intention to commit the relevant felony which resulted in a person's death. Alongside felony-murders generally, the common law recognized as a specific class of "malice aforethought" the intention to inflict grievous bodily harm : for an historical discussion see Stephen's Digest, Art 264(a), R v Vickers (at 670) and R v Cunningham [1982] AC 566 at 575-577.

18. In the 20th century, legal writers argued for the felony-murder rule to be further restricted to felonies of violence: (eg, Kenny, Outlines of Criminal Law, 13th Ed (1929), p 140). It became recognized that this represented the law in DPP v Beard [1920] AC 479, where Lord Birkenhead LC stated :-

19. A separate but related head of constructive liability for murder involved causing death in the course of resisting an officer of justice (see Russell on Crime, 12th Ed, Vol 1, p 477).

20. The most significant narrowing of the categories of murder occurred by statute. By section 11 of the Homicide Act 1957 in the United Kingdom, reproduced in 1963 in Hong Kong by s 2 of the Homicide Ordinance, Cap 339, constructive liability for murder on the basis of the felony-murder rule and of the rule on causing death in the course of resisting an officer of justice was abolished. The provision states :-

Grievous bodily harm after the Homicide Ordinance

21. This legislative change radically re-structured the offence of murder. Liability could no longer be founded simply on proof that death was caused in the course of committing some other offence. An accused had to be shown to have acted with a state of mind described as "malice aforethought (express or implied)". But this was an unhappy phrase. What did "implied malice" mean? Did it preserve an intention to cause grievous bodily harm as a head of mens rea or had that category been swept away along with liability based generally on killing in the course or furtherance of some other offence?

22. This question was addressed by a five-member Court of Appeal in R v Vickers [1957] 2 QB 664. It was held that an intention to cause grievous bodily harm survived as a category of mens rea for murder. That judgment was upheld in DPP v Smith [1961] AC 290, a decision of the House of Lords which proved controversial on other grounds. However, that controversy did not affect their Lordships' ruling that "grievous bodily harm" means "really serious harm" or their rejection of the argument that an intent to do an act "obviously dangerous to life" or "likely to kill" was required (at 334-5).

23. The issue was re-opened in Hyam v DPP [1975] AC 55, another decision that was to prove troublesome regarding other aspects of the mental element in criminal liability. As to the question now under discussion, the minority, comprising Lord Diplock and Lord Kilbrandon, held that DPP v Smith had been wrongly decided and that the Homicide Act 1957 had abolished the grievous bodily harm rule. Lord Diplock concluded (at 93) that for the accused to be convicted of murder, it was necessary to show that he had either intended to kill or intended or foresaw that human life would be endangered as a likely consequence of his acts. Lord Kilbrandon's view (at 98) was that an intention to cause grievous bodily harm was sufficient only if "grievous bodily harm means some injury which is likely to cause death." However, the majority, led by Lord Hailsham LC, held that the grievous bodily harm rule had survived. They considered that the changes proposed by the minority could only be effected by Parliament. This, Lord Hailsham explained, was partly because :-

24. The views of the majority were confirmed in R v Cunningham. Lord Hailsham LC expressed doubts as to whether changing the rule from one requiring an intention to cause grievous bodily harm to one requiring an intention to endanger life would be beneficial. Such a change might give rise to :-

These doubts were shared by Lord Wilberforce who commented :-

25. The R v Cunningham position represents settled law in Hong Kong, having been adopted by the Privy Council in Chan Wing-Siu v The Queen [1985] 1 AC 168. As Sir Robin Cooke put it :-

26. As a result of these and other related developments (which do not require elaboration), the mens rea of murder, both in Hong Kong and in England and Wales, is now confined to two alternatives: an intention to kill or an intention to cause grievous bodily harm. This was made clear in R v Hancock [1986] AC 455, where Lord Scarman, referring to the earlier decision in R v Moloney [1985] AC 905, stated :-

The appellants' challenge at common law

27. Given the state of the authorities, the appellants face insurmountable obstacles in seeking to persuade this Court that it should, as a matter of common law, develop the mens rea of murder so as to require nothing less than an intention to kill or an intention to endanger life.

28. It is true that Ms Eu is able to point to recent dicta from eminent judges expressing dissatisfaction with the grievous bodily harm rule, largely on the ground that it results in a lack of symmetry between the mens rea of murder and the actus reus element of causing death, particularly when contrasted with the mens rea requirements of attempted murder and murder as a secondary participant: see Lord Edmund-Davies in R v Cunningham (at 582); Lord Mustill in Attorney-General's Reference (No 3 of 1994) [1998] AC 245 at 250, 258-9; and Lord Steyn in R v Powell [1999] 1 AC 1 at 14-15; and in R v Woollin [1999] 1 AC 82 at 90.

29. These dicta do not, however, make good the argument. Notwithstanding their criticisms, the very same judges recognize that in the light of the authorities, the grievous bodily harm rule is settled law and that no further judicial narrowing of the mens rea requirement is permissible. As Lord Edmund-Davies put it in R v Cunningham (at 583), any such change must be left to the legislature "as the constitutional organ best fitted to weigh the relevant and opposing factors". Accordingly, the common law challenge to the grievous bodily harm rule must fail.

30. One may note in passing that in recent times, the legislature has intervened in relation to the common law definition of murder on three occasions but has left the grievous bodily harm rule untouched. The radical redefinition of murder in the Homicide Ordinance has already been discussed. Then in 1971, following Westminster's initiative of undoing by statute the unsatisfactory aspects of the House of Lordsdecision in DPP v Smith, the Legislative Council enacted s 65A of the Criminal Procedure Ordinance, Cap 221, to re-iterate the subjective quality of the mental elements in murder and other offences. Then in the year 2000, following a recommendation of the Law Reform Commission, the legislature enacted s 33C of the Offences Against the Person Ordinance, abolishing the "year and a day" rule which had formed part of the common law definition of murder.

The constitutional challenge to the grievous bodily harm rule

31. The constitutional safeguards said by the appellants to have been infringed by the grievous bodily harm rule derive from the Basic Law ("BL") and the Bill of Rights ("BOR") contained in the Hong Kong Bill of Rights Ordinance, Cap 383. The rights relied on fall into three groups, namely the rights to :-

32. BL art 39(1) provides, among other things, that the provisions of the International Covenant on Civil and Political Rights ("ICCPR") as applied to Hong Kong shall remain in force and be implemented through the laws of the HKSAR. Article 39(2) furthermore provides that the rights and freedoms of Hong Kong residents shall not be restricted unless as prescribed by law and that such restrictions shall not contravene the provisions of BL art 39(1). The Hong Kong Bill of Rights Ordinance effects the necessary incorporation into our domestic laws of the ICCPR as applied to Hong Kong : see HKSAR v Ng Kung Siu (1999) 2 HKCFAR 442 at 455. Accordingly, as Mr Blanchflower SC, leading for the respondent, accepts, a statutory provision is liable to be constitutionally invalidated on the ground of inconsistency with the BOR.

Presumption of innocence

33. The right to be presumed innocent can briefly be dealt with first. BOR art 11 provides :-

34. As indicated above, the grievous bodily harm rule constitutes one of two independent heads of mens rea for the offence of murder. It does not give rise to any presumption, whether, for example, a presumption that the accused intended to kill or a presumption that he is guilty of murder. No presumption as to an intention to kill is necessary since proof of an intention to cause grievous bodily harm itself suffices. No presumption of guilt arises either, since such intention has to be proved and its proof does not of itself establish murder. All the elements of the offence require to be established. The constitutionality of the grievous bodily harm rule therefore has nothing to do with the presumption of innocence and BOR art 11 is not engaged.

Arbitrary imprisonment

35. The main constitutional attack on the grievous bodily harm rule focuses on whether imprisonment of an offender following his conviction for murder on the basis of that rule (without any necessary reference to an intention to kill or to endanger life) amounts to arbitrary imprisonment.

36. This question is most appropriately dealt with under BL art 28. No material difference exists in the central concept of arbitrariness which occurs in both BL art 28 and BOR art 5(1), but, as the discussion below indicates, complications which occur in relation to the latter article do not arise in relation to BL art 28. As appears below, we are also of the view that the analysis is not assisted by referring to the right to equality protected by BL art 25 and BOR art 10.

37. Article 28 of the Basic Law provides as follows :-

It is found in Chapter III of the Basic Law which sets out the fundamental rights and freedoms which are constitutionally guaranteed and which lie at the heart of Hong Kong's separate system. As this Court held in Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 at 28J-29A, these provisions should be generously interpreted to ensure that Hong Kong residents enjoy the full measure of those rights and freedoms.

Preliminary points on the scope of BL art 28

38. Two related preliminary points of interpretation should be addressed. They concern the scope of the protection afforded by BL art 28 as compared with BOR art 5(1) and the doubts voiced in R v Coady (at 203B-207B) and echoed in R v Chandra (at 158) as to whether BOR art 5(1) extends to invalidate substantive legal provisions like the grievous bodily harm rule.

39. Article 5(1) of the Bill of Rights provides :-

40. The argument in the two Court of Appeal cases proceeded on the basis of BOR art 5(1) and involved asking (i) whether that article extends its protection to offenders lawfully imprisoned after conviction by a court; and (ii) whether it is capable of invalidating, on the grounds of arbitrariness, substantive criminal laws founding a conviction and consequent imprisonment, such as the grievous bodily harm rule in the present case. Both questions are better answered under BL art 28.

41. The terms of BL art 28 differ from those of BOR art 5(1). Article 28 expressly provides a constitutional guarantee against arbitrary "imprisonment" and not just against arbitrary "arrest or detention" as in the case of BOR art 5(1). Plainly, "imprisonment" covers incarceration pursuant to a sentence lawfully imposed by a court after a criminal conviction. The first question is therefore plainly answered in the affirmative in relation to BL art 28, whatever may be the position under BOR art 5(1).

42. The second question must also be answered affirmatively. Article 28 prohibits not merely "unlawful" imprisonment but "arbitrary or unlawful" imprisonment. It envisages that a term of imprisonment lawfully ordered may nonetheless be "arbitrary". It follows that such arbitrariness may reside in the substantive rules of criminal liability whose breach led to the imprisonment ordered.

43. This conclusion is consistent with interpretations of article 9(1) of the ICCPR (which is identical to BOR art 5(1), prohibiting "arbitrary arrest or detention"). Thus, in Hugo van Alphen v The Netherlands (Communication No 305/1988, 15 August 1990), the United Nations Human Rights Committee (dealing with a case of detention without prior conviction) stressed that arbitrariness is not excluded merely because detention is pursuant to lawful procedures :-

This approach was also adopted in A v Australia (Communication 560/1993) (UN HRC) 4 BHRC 210, at para 9.2.

44. In Fok Lai Ying v Governor in Council (1997) 7 HKPLR 327, the Privy Council was concerned with a challenge to a land resumption in Hong Kong pursuant to the Crown Lands Resumption Ordinance. The challenge was mounted on the basis of BOR art 14 which prohibits "arbitrary or unlawful interference" with (among other things) one's home. For the purposes of the argument, the Privy Council was prepared to assume that article 14 applied to the land resumption. Lord Cooke, giving the advice of the Board, referred to the Human Rights Committee's opinion as to the meaning of "arbitrary", noting :-

Lord Cooke also referred to the interpretation of "arbitrary" in the Hugo van Alphen case, and stated that the Privy Council was prepared, without so deciding, to accept its correctness, the appeal then being disposed of on the footing that the challenge failed on the facts. His Lordship explained the Board's reluctance to lay down firm principles in the following terms :-

45. In the light of the foregoing, the precise scope and effect of BOR art 5(1) do not require further discussion in the present case. While some authorities on the meaning of "arbitrariness" in relation to BOR art 5(1) and its ICCPR art 9 equivalent are helpful and will be referred to below, the doubts expressed by the Court of Appeal do not arise in relation to BL art 28 which caters sufficiently for the allegations of arbitrariness.

The grievous bodily harm rule and the meaning of "arbitrary" in BL art 28

46. As noted above, the approach of the Human Rights Committee is to interpret the concept of arbitrariness broadly "to include elements of inappropriateness, injustice and lack of predictability". The scope of the arbitrariness concept is a matter to which we will return when we deal with the mandatory life sentence, where it arises in a different context. A strand of the developing jurisprudence in this area introduces the concept of manifest or gross disproportion as part of "arbitrariness", a matter of importance to the mandatory life sentence but not relevant to the debate on the grievous bodily harm rule.

47. A helpful way in which the concept of arbitrariness may be approached for present purposes can be found in dicta in Neilsen v Attorney-General [2001] 3 NZLR 433, a decision of the New Zealand Court of Appeal. This was a case where the decision of the police to arrest a suspect was challenged. One ground of challenge was that it was arbitrary and in contravention of s 22 of the New Zealand Bill of Rights Act 1990 which provides : "Everyone has the right not to be arbitrarily arrested or detained." The Court in fact disposed of the case on the narrower basis of Wednesbury unreasonableness. However, on the meaning of "arbitrary" Richardson P, giving the judgment of the Court, stated as follows :-

48. In our view, in the context of the grievous bodily harm debate, this is a useful formulation which is consistent with and adds flesh to the approach adopted in the Hugo van Alphen opinion. Applying it to the present case, one asks : Can it be said, given the asymmetry resulting from the grievous bodily harm rule, that such rule is arbitrary in that it is capricious or unreasoned or without reasonable cause? Can the imprisonment which followed be said to have been imposed without reference to an adequate determining principle?

49. In our view, the answer is clearly "No". A person convicted of murder under the rule is one who acts with the intention of causing someone really serious bodily harm and whose actions in the event cause another's death. A person who takes another's life in such circumstances brings to realisation the risk which is necessarily inherent in his conduct. In our view, there is nothing capricious or unreasonable in classing such conduct as murder as a matter of legal policy. A person may not subjectively intend or even foresee that he will cause death. He may desire to limit the consequences of his actions to the infliction of grievous bodily injury. However, as a matter of commonsense it is impossible to predict that the consequences of an intentional infliction of really serious bodily harm will necessarily be successfully limited and will not prove to be life-threatening.

50. Judges who have expressed a preference for abolishing the grievous bodily harm rule have nevertheless recognized that a contrary view is tenable. For example, in R v Cunningham, after commenting that he found the rule "passing strange", Lord Edmund-Davies stated :-

51. A contrary argument was also recognized in R v Powell [1999] 1 AC 1, by Lord Steyn, one of the rule's sternest critics. His Lordship stated :-

Lord Steyn however thought it preferable to deal with such an offender under the manslaughter and discretionary life sentence regime.

Two Canadian cases on the mens rea of murder

52. The appellants rely on two decisions of the Canadian Supreme Court in support of striking down the grievous bodily harm rule as unconstitutional. They are R v Vaillancourt (1987) 47 DLR (4th) 399, and R v Martineau (1990) 58 CCC (3d) 353 respectively. Both were concerned with challenges to the constitutionality of provisions of the Canadian Criminal Code, RSC 1970, c C-34, then defining the offence of murder. Such challenges were mounted under various provisions of the Canadian Charter of Rights and Freedoms with particular reliance being placed on the principles of fundamental justice given force by s 7 of the Charter as follows :-

53. In R v Vaillancourt the accused was convicted of second degree murder under s 213(d) of the then Criminal Code, on the footing that he and an accomplice had committed an armed robbery during which the accused had been armed with a knife and the deceased had been shot by his accomplice. The liability of the accused was doubly constructive and virtually absolute. He had personally not done the act of killing but was liable as the killer's accomplice (pursuant to s 21(2) of the Code). He had not formed any subjective mental state in relation to killing or harming the victim (which had taken place in a different part of the premises), but was constructively held liable for murder because he had had a weapon on his person while committing the robbery. He argued that a conviction on such a basis under s 213(d) was inconsistent with the principles of fundamental justice.

54. The material provisions of the then-existing Criminal Code, taken from the principal majority judgment delivered by Lamer J in R v Vaillancourt (at 409-410), were as follows :-

55. As Lamer J notes (at 408-410) sections 212 and 213 contain "a very interesting progression" with respect to the mental state required to be proved. They start with someone who "means to cause death". They then progress to a lesser requirement, catching someone who "means to cause [the victim] bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not". The requirement is then further relaxed so as to catch someone who "for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being". Finally, by section 213, the net is cast so widely as to catch anyone who causes death while committing or attempting one of the enumerated offences in combination with satisfying one of the specified conditions. The mental elements of murder so defined therefore range from an intention to kill to the constructive liability of the defendant in R v Vaillancourt.

56. Having pointed to the severity of the punishment for murder and the peculiar stigma attached to that offence, Lamer J stated :-

However, the Court did not at that stage consider it necessary to lay down such a principle. Section 213(d) did not even meet the lower threshold test of objective foreseeability and so was held on that basis to have infringed s 7 of the Charter without any saving justification.

57. R v Vaillancourt taken on its own does not advance the appellants' case. As Lamer CJC later explained in R v Martineau (at 359), it decided that "...... it is a principle of fundamental justice that before a person could be convicted of murder there must be proof beyond a reasonable doubt of at least objective foreseeability of death." The requirement in Hong Kong law of an intention to cause grievous bodily harm is a subjective form of mens rea far-removed from the constructive liability created by s 213(d). R v Vaillancourt was however the decision which set the stage for R v Martineau which is more directly on point.

58. The facts in R v Martineau, were similar to those in R v Vaillancourt. They also involved two participants in an armed robbery with the killing actually carried out by Martineau's accomplice. Although it was not strictly necessary, the Court decided to take the step it had foreshadowed in R v Vaillancourt and to identify positively which of the mens rea provisions for murder in the Code were consistent with the principles of fundamental justice. Lamer CJC stated :-

59. The appellants rely on Lamer CJC's reference to principle in the following terms :-

60. The appellants submit that these decisions support the proposition that an asymmetrical mens rea for murder, meaning a mental state which does not involve contemplation of death as a consequence of the accused's conduct offends principles of fundamental justice which would include a principle against arbitrary imprisonment, making the grievous bodily harm rule unconstitutional in Hong Kong.

61. We do not accept that view of these Canadian cases. Properly understood, they do not bear on the validity of the grievous bodily harm rule as a head of mens rea for murder.

62. The Canadian Supreme Court was examining the constitutional validity of the specific provisions of sections 212 and 213 of the Criminal Code. As Lamer J had indicated in R v Vaillancourt, these sections set out "an interesting progression" of required mental states ranging from an intention to kill down to liability that was constructive and virtually absolute. When Lamer CJC in R v Martineau concluded that the principles of fundamental justice required the offence of murder to be "reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death", he was echoing the language of the Code and drawing a line which affirmed the constitutionality of ss 212(a)(i) and (ii) as well as that part of s 212(c) which imposed liability on a subjective basis (see Lamer CJC at 362-363). Drawing the line at that point invalidated or at least cast doubt on the constitutionality of the other, less stringent mental requirements provided for by s 212(c) and 213.

63. An intention to cause grievous bodily harm does not feature as a category of mens rea in sections 212 or 213 and the Canadian cases provide no basis for postulating that if, hypothetically, the grievous bodily harm rule had represented a point on the progression, it would have been considered unconstitutional. It is therefore incorrect to conclude that on the reasoning of these cases, the grievous bodily harm rule offends any principles of fundamental justice.

Equality before the law

64. The right of equality before the law is provided for by BL art 25 which states : "All Hong Kong residents shall be equal before the law". Similarly BOR art 10 materially provides : "All persons shall be equal before the courts and tribunals......."

65. It is unnecessary to explore the scope of these articles or to consider whether they are engaged. The appellants' argument based on these provisions in relation both to the grievous bodily harm rule and the mandatory life sentence mirrors and does not add to their argument based on arbitrariness. Unless the imprisonment is held to be arbitrary, it is not suggested that any infringement of the equality protection arises. These grounds therefore require no further discussion in this judgment.

Conclusion on challenge to grievous bodily harm rule

66. For the reasons given above, the challenges to the grievous bodily harm rule mounted at common law and on constitutional grounds both fail.

Mandatory life sentence

67. Upon their conviction for murder, the appellants were sentenced to life imprisonment. The judge had no choice as the sentence is fixed by law : Offences Against The Person Ordinance, s 2. If a judge is of the opinion that matters relating to the appellants or the offence exist which should be recorded for the purpose of reviewing the sentence in the future, he must make a report in writing to the Chief Executive specifying those matters: Criminal Procedure Ordinance, s 67B(2). No such report was made in this case.

68. Being a sentence fixed by law in respect of an indictable offence, a mandatory life sentence cannot be appealed independently of an appeal against conviction : Criminal Procedure Ordinance, s 83G.

Constitutional challenge to the mandatory life sentence

69. The appellants seek to subject this mandatory regime to a constitutional challenge. The argument is put in various ways, but in essence, the appellants argue that the culpability of those convicted of murder varies greatly, ranging from the mercy killing to the contract or sadistic killing. Therefore, relying primarily on BL art 28, they contend that in depriving the judge of all sentencing discretion and compulsorily requiring the imposition of life imprisonment in all murder cases, whatever the degree of culpability of the individual involved, such imprisonment is arbitrary and unconstitutional.

70. Putting the same complaint in another way, they contend that such laws and the sentence of life imprisonment constitute cruel, inhuman or degrading punishments contrary to BOR art 3.

71. It is also argued that the right given by BOR art 5(4) to persons under detention to contest the lawfulness of his detention is infringed by the mandatory life sentence regime.

72. Furthermore, the statutory exclusion of a right of appeal has attracted a challenge under BOR art 11(4) which gives persons convicted of a crime the right to have their conviction and sentence reviewed by a higher tribunal according to law.

73. Finally, the mandatory regime is said to infringe the requirement of BOR art 6(3) that the treatment of prisoners in our penitentiary system should have as its essential aim, their reformation and social rehabilitation.

74. As indicated above, it is unnecessary to consider further the complaints put in terms of BOR art 5(1) (involving arbitrary detention) or BL art 25 and BOR art 10 (regarding equality before the courts) since, in the context of this particular appeal, those articles add nothing to the discussion under BL art 28. The same applies to BOR art 22 (relating to equal protection of the law and non-discrimination) which was mentioned in the course of submissions.

History of the sentence for murder in Hong Kong

75. Murder is and has throughout the years been regarded by our community as the most serious of crimes. The offence is unique in that, for adult offenders, it has always carried a mandatory sentence. An understanding of the history and framework within which the sentence for murder operates is important to an assessment of its constitutionality.

76. Prior to 1993, in respect of adults, the mandatory sentence for murder was the death penalty. This had been the position since 1842 when the common law became applied to Hong Kong, the mandatory death sentence being part of the common law: see Hawkins, Pleas of the Crown, Book 2, Ch 48. As from 1865, the sentence became statutory : Offences Against the Person Ordinance, s 2 (Originally Ord No 4 of 1865). The mandatory death penalty was also the punishment for treason and piracy with violence: Crimes Ordinance, Cap 200, ss 2 and 19 (prior to amendment in 1993).

77. There was an exception for pregnant women. Where a woman convicted of an offence punishable by death was found to be pregnant, the sentence was still mandatory but she was sentenced to imprisonment for life instead: Criminal Procedure Ordinance, s 77 (repealed in 1993).

78. Persons who were under 18 when the offences were committed were also differently treated. Instead of the mandatory death penalty for murder, they were ordered to be detained during Her Majesty's pleasure: Criminal Procedure Ordinance, s 70 (repealed in 1993). The judge again had no choice in the matter.

79. By the Homicide Act 1957, the United Kingdom restricted the application of the mandatory death penalty. It retained the sentence for capital murders which were defined to include murders done in the course of theft, done by shooting or causing an explosion or done in the course of resisting lawful arrest or effecting escape from legal custody, as well as murder of a police or prison officer on duty. It also remained the sentence for persons convicted of murder for a second time. For other murders, the penalty became the mandatory life sentence.

80. In 1965, the United Kingdom abolished capital punishment altogether and replaced it with mandatory life imprisonment: Murder (Abolition of Death Penalty) Act 1965. However, capital punishment remained on the statute book for treason and piracy with violence until 1998 when it was substituted by a discretionary life sentence: Crime and Disorder Act 1998 s. 36.

81. Hong Kong, although then a British colony, did not follow those changes. The death penalty remained on our statute book until 1993. Indeed, in 1966, a year after its total abolition in the United Kingdom, the death penalty for murder was carried into effect. This was to be the last execution in Hong Kong.

82. In 1973, there occurred the celebrated case of Tsoi Kwok-cheung. Tsoi was convicted of murder and the Governor refused to exercise the prerogative of mercy. Tsoi petitioned the Queen who, acting on the advice of the Secretary of State, granted a pardon. This was a controversial and unprecedented intervention. The Secretary of State believed that if advice were given that the death penalty should be carried out in Hong Kong, this would not be supported in the British Parliament to which he was answerable. Thereafter, although there were calls from time to time in Hong Kong for the death penalty to be carried out, the Governor invariably commuted death sentences to imprisonment for life or a fixed term of imprisonment. The Hong Kong Administration had taken the view that given the state of opinion in the British Parliament, the right to petition the Queen would secure a reprieve: see Athena Liu, The Right to Life, in Human Rights in Hong Kong (ed Wacks 1992) pp 264 at 270 ff.

83. In 1990 the Basic Law was adopted to come into effect on 1 July 1997. In June 1991, the Legislative Council enacted the Hong Kong Bill of Rights Ordinance incorporating the ICCPR as applied to Hong Kong. At that time, the mandatory death penalty was still part of our law. The Bill of Rights in effect tolerated preservation of the death penalty. In dealing with the right to life, BOR art 2(2) provides that the sentence of death may be imposed only for the most serious crimes. However, BOR art 2(6) makes it clear that nothing in the article should be invoked to delay or to prevent the abolition of capital punishment in Hong Kong.

84. In June 1991, a few weeks after the Hong Kong Bill of Rights Ordinance came into effect, a member of the Legislative Council moved a motion urging the Administration to resume immediately the carrying out of the death penalty. There was extensive debate. At the end of the day, the motion was not supported by the majority. What carried the day (by a majority of 24 to 12 with 5 abstentions) was an amendment to the motion moved by the Honourable Mr Martin Lee. The amended motion called for legislative measures to abolish the death penalty and to replace it with life imprisonment. The mandatory quality of the penalty would remain but the sentence of death would be replaced by a life sentence.

85. During the debate, differing views were expressed. Many legislators expressed the community's serious and widespread concern about the problem of violent crime and what was perceived to be a deteriorating situation. In particular, there was concern that criminals were coming to commit serious violent crime in Hong Kong from the Mainland where the regime on crime and punishment was harsher than in Hong Kong. A number of legislators were advocating the carrying out of the death penalty in murder cases, stressing that the circumstances of Hong Kong were different from those in the United Kingdom. As is reflected in the terms of the amended motion, those in favour of abolition of the death penalty recognised both the need to deter and prevent crime and the importance of maintaining the highest standards of a modern and humane society. They favoured abolition but only on the basis that it would be replaced by mandatory life imprisonment. They believed that having regard to its severity, a mandatory life sentence would be the appropriate penalty by way of replacement.

Enactment of legislation

86. In November 1992, responding to the majority view in the 1991 motion debate, the Administration introduced the Crimes (Amendment) (No 3) Bill 1992. It proposed abolition of the mandatory death penalty and its replacement by mandatory life imprisonment, not only for murder but also for treason and piracy with violence.

87. A Bills Committee was set up to study the bill and its Chairman reported to the Legislative Council at the debate on the bill in April 1993: see Official Record of Legislative Council Proceedings (commonly called "Hong Kong Hansard"), 21 April 1993, p 2935 ff. The Committee had received different views from the Bar Association, the Law Society and a group called the Hong Kong Citizen Alliance. The Alliance was totally against the abolition of capital punishment. The Bar Association considered that the only offence for which there should be a mandatory life sentence was murder. The Law Society believed that life imprisonment should only be the maximum sentence for murder.

88. The Bills Committee took the view that murder stands in a different category from treason and piracy with violence. It concluded that mandatory capital punishment should be replaced by a mandatory life sentence for murder but by a discretionary life sentence for treason and for piracy with violence.

89. Further, the Bills Committee "felt strongly" that legislation should be enacted to put on a statutory basis the Board of Review of Long Term Prison Sentences which provided individual scrutiny of cases on reviews of sentence. Under the then s 69A of the Prison Rules, various categories of sentences were required to be reviewed at regular intervals, including life sentences. The Board had been established in 1959 as an advisory body to review each sentence in those categories and to make recommendations to the Governor on the exercise of the prerogative to commute or remit sentences. It was considered that a statutory scheme for review was needed.

90. During the debate on this Bill, views were again expressed both for and against the abolition of mandatory capital punishment and its replacement by the mandatory life sentence. One member, the Honourable Mr Simon Ip, spoke in favour of a discretionary life sentence on the ground that a mandatory sentence was unsatisfactory as it would cover convicted persons of different degrees of culpability and would also blur the separation of powers.

91. At the end of the debate, the Administration accepted the views of the Bills Committee and gave an assurance that the legislation it required would be introduced.

92. In April 1993, the Crimes (Amendment) Ordinance was passed (with 40 votes in favour, 9 votes against and 2 abstentions). It prescribes mandatory life imprisonment only for murder. A discretionary life sentence is prescribed for treason and for piracy with violence. It should be noted that persons under 18 years of age were at that stage, like adults, subject to the mandatory life sentence for murder, unlike previously when they were subject to mandatory detention during Her Majesty's pleasure instead of the mandatory death penalty for adults.

The Long-term Prison Sentences Review Ordinance

93. Pursuant to the assurance given, the Long-term Prison Sentences Review Ordinance, Cap. 524 ("the Review Ordinance") was enacted in June 1997, with the intention of enhancing the transparency, efficiency and fairness of the prison sentence review and remission systems: Hong Kong Hansard, 23 June 1997, p 238.

94. The Review Ordinance established the Long-term Prison Sentences Review Board ("the Board"), specifying that it is not part of the Government : s 5. The Board's essential function is to give individual consideration to offenders and their cases in relation to certain sentences, including life sentences, both mandatory and discretionary : s 7. The Board, consisting of eight to ten members appointed by the Chief Executive, is required to have a range of expertise. It must include two judges or former judges of the Court of First Instance (as its President and Deputy President), a psychiatrist, a psychologist, a social worker, a barrister or solicitor, an educator and a person engaged in industry or commerce. Among the members appointed, at least one must have expertise and experience in the rehabilitation of offenders: s 6.

95. The Board has a statutory duty to consider each individual case at the regular intervals prescribed. In the case of a mandatory life sentence, this begins 5 years after the start of the sentence and takes place at least every 2 years thereafter : s 11(2). To facilitate its review, it can call for reports from the Commissioner of Correctional Services, the Commissioner of Police, the Registrar of the High Court and the Director of Social Welfare : s 14.

96. In conducting its review of each sentence, the Board is required to have primary regard to the following principles : (a) where the prisoner's rehabilitation is not complete, the rehabilitative effect of release; (b) the benefits to the prisoner arising from supervision after release with a view to securing rehabilitation and reintegration into the community; (c) whether the part of the sentence served is sufficient to warrant consideration of early release; (d) the need to protect the community from reasonably foreseeable harm by the prisoner as a result of early release : s 8. The Board is also permitted to take into account various matters set out in regulations which reflect these principles and any other matters which the Board considers relevant : Long-Term Prison Sentences Review Regulations, s 2.

97. There are procedural safeguards for the prisoner. He must be told the date of the review and is entitled to make written and, subject to the Board's consent, oral representations : ss 12(4) and 12(5). In the case of prisoners serving a mandatory life sentence, no regulations have yet been made to apply to them the procedural safeguard presently enjoyed by prisoners serving other sentences, whereby, subject to exceptions, they are provided the materials to be considered by the Board prior to the review. The statute contemplates that this safeguard is to be extended to life prisoners. Appropriate regulations should therefore be made as soon as practicable. Even in the absence of such regulations, this safeguard can and should be applied administratively.

98. Upon a review of a life sentence, the Board may recommend to the Chief Executive substitution of a determinate sentence and thereafter, it may further recommend remission of all or part of the determinate sentence : s 15(1)(a). When acting on the Board's recommendation, the Chief Executive exercises his powers under BL art 48(12) to pardon persons convicted of criminal offences or to commute their penalties. Where the Board wishes to defer recommending conversion of a life sentence into a determinate one, it may make a conditional release order: s 15(1)(b). Such conditional release orders take effect directly and without need for a recommendation to the Chief Executive. The order may be for up to two years and may be subject to conditions, for example, as to prescribed places of residence and employment, etc : s 18. Where the life sentence has been converted into a determinate sentence and the prisoner has served not less than two thirds of it, the Board may make an order directing the prisoner's early release under supervision : ss 15(1)(c) and 18. As with a conditional release order, such an order takes effect directly and is not a matter of recommendation to the Chief Executive.

Exceptions for persons under 18

99. As mentioned above, under the Crimes (Amendment) Ordinance, persons under 18 convicted of murder were made subject to the mandatory life sentence. In 1997, when the Review Ordinance was enacted, the legislature decided that this should be changed. For those who were under 18 at the time of the offence, the court is now given a discretion whether to sentence them to life imprisonment or imprisonment for a shorter term : s 44, Schd 2, para 2.

The role of the legislature

100. Before turning to the specific constitutional provisions relied on, the question of the weight which the court should give to the view of the legislature in the context of the present constitutional debate is an important facet of that debate.

101. The Basic Law enshrines the principle that there must be a separation of powers as between the executive, the legislature and the judiciary. The legislature is constitutionally entitled to prescribe by legislation what conduct should constitute criminal offences and what punishment those found guilty by the courts should suffer: R v Hinds [1977] AC 195 at 225G-226D. But in the exercise of their independent judicial power, the courts have the duty to decide whether legislation enacted is consistent with the Basic Law and the Bill of Rights. If found to be inconsistent, the duty of the courts is to hold that legislation invalid : Ng Ka Ling v Direction of Immigration (1999) 2 HKCFAR 4 at 25G-I.

102. It is also established that when deciding constitutional issues, the context in which such issues arise may make it appropriate for the courts to give particular weight to the views and policies adopted by the legislature. In R v DPP, Ex p Kebilene [2000] 2 AC 326, speaking of the Human Rights Act 1998 which took effect on 2 October 2000, incorporating the European Convention on Human Rights ("ECHR"), Lord Hope stated :-

103. This approach has been compared to the doctrine of according a "margin of appreciation" to national institutions, adopted by the supra-national European Court of Human Rights in exercising its supervisory function. As Lester and Pannick put it :-

104. This was acknowledged by Lord Bingham in Brown v Stott [2001] 2 WLR 817, in the following terms :-

Lord Steyn shared this view :-

105. The context and circumstances of the present case render this approach relevant and justify the courts giving proper weight to the decision of the legislature. As is clear from the legislative history of the mandatory life sentence provisions, the question of the appropriate punishment for what society regards as the most serious crime is a controversial matter of policy involving differing views on the moral and social issues involved. The legislature has to make a difficult collective judgment taking into account the rights of individuals as well as the interests of society. It has to strike a balance bearing in mind the conditions and needs of the society it serves, including its culture and traditions and the need to maintain public confidence in the criminal justice system. As Lord Woolf pointed out in Attorney-General v Lee Kwong Kut [1993] AC 951 :-

106. In prescribing punishments for criminal offences, the legislature usually prescribes the maximum penalties that may be imposed by the courts. However, the punishment for murder stands in a special position. Continuing the position at common law, the legislature in Hong Kong has always provided for a mandatory sentence in respect of adult murderers. When it passed the Crimes (Amendment) (No 3) Bill in 1993, it decided that mandatory life imprisonment should be the penalty for murder. It arrived at that decision when the Bill of Rights had been part of our law for nearly two years. And in 1997, when it enacted the exception for those under 18 years of age, the legislature implicitly confirmed its decision to impose a mandatory life sentence in the case of adults.

107. In the extensive debate that had taken place, different views had been expressed, including the view (which had support which was not insignificant) that the mandatory death penalty should not only be retained, but should be carried into effect. Ultimately, the opposing school which favoured abolition of the death penalty carried the day but this was achieved only on the basis that it would be replaced by the mandatory life sentence.

108. The legislative history also makes it clear that the legislature's intention was to mark out murder as a uniquely serious offence by attaching only to that offence the mandatory life sentence. Manslaughter and offences falling short of the full offence of murder such as conspiring or soliciting to commit murder attract only a discretionary life sentence : ss 5 and 7 of the Offences Against the Person Ordinance. And when the original bill proposed that treason and piracy with violence should equally be made subject to a mandatory life sentence, the legislature rejected that proposal and made the sentence for those offences discretionary life imprisonment.

109. These are matters to which due weight should be given. The Court ought also to give proper weight to the fact that it was part and parcel of the legislature's decision that a statutory regime for the individualised review of each sentence after its mandatory imposition should be put in place. It was on the basis of the Administration's assurances that the legislation necessary for such a scheme would be introduced that the mandatory life imprisonment provisions were passed into law. That scheme is now embodied in the Review Ordinance.

Mandatory life sentences, "arbitrariness" and BL art 28

110. The test of arbitrariness adopted in relation to the grievous bodily harm rule focuses on whether the legal provision challenged can be said to be "capricious, unreasoned or without reasonable cause", in line with the approach of the New Zealand Court of Appeal in Neilsen v Attorney-General. In the present context, of particular relevance is a strand of authority that introduces the concept of "disproportion" and equates with arbitrary imprisonment, sentences of imprisonment which are manifestly disproportionate.

111. Thus, in R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19, Lord Hope, discussing the jurisprudence of the European Court of Human Rights on the meaning of "arbitrary detention" in ECHR art 5(1), notes that it encompasses cases where the detention "was resorted to in bad faith or was not proportionate" (at 38). This was re-iterated by his Lordship in the Privy Council in Anderson et al v The Scottish Ministers and the Advocate General for Scotland, DRA Nos 9, 10 and 11/2000 (15 October 2001), para 22.

112. Deprivation of liberty can be attacked on the separate ground that it is unlawful. But where imprisonment is lawful, that is, where it is ordered pursuant to duly constituted laws, a high threshold must be crossed before those laws can be struck down on the basis that the imprisonment pursuant thereto is disproportionate. It must be sufficiently disproportionate to justify describing the law as "arbitrary" ( a disproportion so great as to reduce the law virtually to something capricious, unreasoned or without reasonable cause. As Dr Manfred Nowak puts it, the disproportion must be "manifest". Discussing arbitrariness in the context of art 9(1) of the ICCPR, he states :-

Why the appellants say mandatory life sentences are arbitrary

113. Citing the comments made by Lord Bingham in relation to the mandatory death penalty in Patrick Reyes v The Queen [2002] 2 WLR 1034, Ms Eu points out that the range of moral culpability in murder cases is very extensive :-

The same point is made in other cases (eg, per Simon Brown LJ in R (on the application of Anderson) v Home Secretary [2002] 2 WLR 1143, 1160: "...... the spectrum is a wide one with multiple sadistic murders at one end and mercy killings at the other.")

114. The appellants contend that for s 2 of the Offences Against the Person Ordinance to require the court to impose the same sentence on the mercy killer as the contract or sadistic killer is to make compulsory a punishment that is grossly disproportionate and therefore arbitrary (as well as cruel, inhuman or degrading, as discussed below) in the case of an offender at the lower end of the culpability scale, such as the mercy killer. Accordingly, they argue, since cases with such an outcome are inevitable, the section is unconstitutional and must be struck down or at least "read down" to convert the mandatory sentence to one that is discretionary.

Key aspects of the appellants' argument

115. Two important features of the appellants' argument must be addressed. In the first place, it is an argument that implicitly challenges not merely the sentence prescribed for murder, but the permissible scope of the offence as a matter of substantive criminal law. The argument regards it as objectionable that one should define murder so as to include persons considered to be at the lower end of the culpability scale, such as mercy killers and those who kill from using excessive force in self-defence.

116. Whether such killings should be treated as murder of course raises highly controversial issues of moral, social and legislative policy which are debated in many countries. Various groups can be found championing the retention of murder and the mandatory life imprisonment (or even the death penalty) for such cases, or advocating that such cases be treated as manslaughter or arguing for the de-criminalization of some such cases (for instance, cases of consensual euthanasia).

117. In Hong Kong, the law classifies as a murderer, someone who causes the death of another either intending to cause death or intending to inflict really serious bodily harm. We have already rejected the argument that mens rea so defined is unconstitutionally wide. Statutory exceptions exist which reduce the liability to manslaughter where the killing is done while suffering from diminished responsibility, or as a result of provocation or as the survivor of a suicide pact, significantly narrowing the classes of homicide which constitute murder : Homicide Ordinance, ss 3, 4 and 5.

118. Murder, with such a focused definition, is regarded by the legislature as a crime apart, involving the infliction of death ( the most serious harm than one human being can cause to another ( with a mental element carrying a very high degree of moral blameworthiness. The legislature has accordingly prescribed the uniquely serious punishment of a mandatory life sentence which is reserved for the crime of murder and which is a response to the crime itself, irrespective of the circumstances of the offence or the offender, notwithstanding an undoubted recognition that there will inevitably be a range of culpability among different offenders. As the European Court of Human Rights, referring to the mandatory life sentence in the United Kingdom noted in Wynne v UK (1994) 19 EHRR 333, such a sentence is imposed "because of the inherent gravity of the offence." While evolving United Kingdom practice (discussed below) has made this description of the mandatory life sentence no longer applicable in England and Wales (see Stafford v UK, ECtHR Application No 46295/99, 28 May 2002, para 79), it remains relevant in the Hong Kong context.

119. To stay with the example of mercy killings as homicides at the lower end of the culpability scale, it remains the policy of the law, a policy that is quite constitutional, that in the absence of one of the statutory exceptions, a mercy killer should be held liable for murder. The law is presently not prepared to exempt from murder, someone who takes it upon himself to kill another on what he perceives to be mercy killing grounds, even where the victim consents. Such a killing is caught by the definition of murder, since the perpetrator undoubtedly intends to cause death. Some may disagree with that policy. But whether persons such as mercy killers at the lower end of the culpability scale should or should not be classified as murderers is a question which falls pre-eminently within the area where, as discussed above, weight should be given to the legislature's view when assessing the constitutionality of legislation enacted. Different sectors of the community may legitimately wish to have their voices heard. In the legislature, the full range of policy considerations can be considered with much greater efficacy than a court can achieve in the course of deciding a single case.

120. Secondly, the appellants' argument proceeds on the basis that the existence of a wide range of moral culpability separating defendants in different murder cases is in itself a complete and sufficient basis for a finding of arbitrariness. We do not agree in respect of the offence of murder. The fact that a mercy killer can point to there being more heinous killings does not of itself mean that his own sentence was arbitrary and unconstitutional.

121. An assessment of alleged arbitrariness by reason of manifest disproportion involves weighing the severity of the punishment (life imprisonment) against not only the nature and seriousness of the offence, but also other legitimate sentencing objectives (such as protection of the public, preventing repetition of the offence, deterring others from committing like offences and societal denunciation of the offence). It is, in other words, not merely a question of looking at the offender's culpability in comparison with the culpability of others convicted of the same offence. We would emphasise that this is particularly so in relation to murder which, as indicated above, is a crime apart.

122. The mandatory life sentence performs deterrent and denunciatory functions in support of the existing policy of the law. To return to the example of the mercy killing, while it is in the nature of such an offence that a mandatory life sentence is unlikely to serve the object of protecting the public from the offender since he is unlikely to repeat the crime, such a sentence will undoubtedly have a considerable deterrent effect on others who may be contemplating what they perceive to be mercy killings. It is also a sentence conveying emphatic denunciation of what continues to be regarded in our society as the most serious of crimes.

Conclusion as to BL art 28

123. Taking into account the inherent and unique gravity of the offence and the sentencing objectives of a mandatory life sentence as a whole, we are unable to accept that mandatory life imprisonment represents a manifestly disproportionate sentence so as to contravene BL art 28 on the grounds of arbitrariness. The legislative judgment that the offence of murder, having regard to its gravity, calls for a sentence of mandatory life imprisonment, even allowing for the different circumstances in which it may be committed, is tenable and rational. As such it is a legislative judgment which this Court should respect.

124. As Borins DCJ put it in R v Guiller (1985) 48 CR (3d) 226 (cited with approval by Lamer CJC in R v Smith (Edward Dewey) (1987) 34 CCC (3d) 97 at 137, and in R v Luxton (1990) 58 CCC (3d) 449 and 460) :-

125. In accepting the legislative judgment, we give particular weight to the legislature's insistence on a statute-based regime for review by an independent board of all life sentences, with power to recommend conversion of such sentences to fixed terms and to direct conditional releases in appropriate cases.

Cruel, inhuman or degrading punishment

126. Article 3 of the Bill of Rights provides :-

127. The appellants argue in the alternative that the mandatory life sentence for murder represents a cruel, inhuman or degrading punishment because it will inevitably be wholly disproportionate in some cases.

128. Prohibitions of "cruel and unusual" or "cruel, inhuman or degrading" punishments were originally regarded as being directed against punishments which were cruel or degrading in their nature or in the manner or conditions in which they were imposed. As Wilson J explained in R v Smith (Edward Dewey) (1987) 34 CCC (3d) 97 :-

129. However, it is now clear that punishments which are not cruel in the abovementioned sense, but are "grossly disproportionate" fall also to be treated as within the prohibited class. It has been so held by, among others, the Canadian Supreme Court in R v Smith (Edward Dewey), the European Court of Human Rights (Soering v UK (1989) 11 EHRR 439, paras 103-104), the Constitutional Court of South Africa (State v Makwanyane 1995 (3) SA 391, para 94) and the Privy Council (Patrick Reyes v The Queen).

130. In our view, the threshold for establishing such disproportionality as would suffice to make a punishment which is prescribed by law cruel, inhuman or degrading (ie, "grossly disproportionate"), is either the same or higher than the threshold for arbitrariness ("manifestly disproportionate"). Thus, in R v Smith (Edward Dewey) a mandatory minimum sentence of 7 years' imprisonment for importing narcotics was challenged as disproportionate and in violation of s 12 of the Canadian Charter which prohibits "cruel and unusual treatment or punishment". Lamer J, giving the main majority judgment, explained that the test for such cruelty is :-

131. Moreover, Lamer J also pointed out that in assessing whether a sentence is grossly disproportionate one looks first at the circumstances of the offence and of the particular offender but that this :-

132. Accordingly, the appellants' case based on BOR art 3 also fails. Having fallen at the hurdle of arbitrariness, they face an equal or higher obstacle in seeking to establish that the mandatory life sentence is cruel, inhuman or degrading punishment. The approach to assessing disproportionality is the same in each case, with the court not being confined to considering individual culpability but factoring in also other legitimate penological aims and giving due weight to the legislative choice of sentence.

Cases on the mandatory death penalty

133. We note in passing that considerable reliance was placed at the hearing on assessments of disproportionality in relation to mandatory death penalty cases : eg, Mithu v State of Punjab AIR 1983 SC 473; Patrick Reyes v The Queen; United States v Burns and Rafay (2001) 151 CCC (3d) 97; and R v Hughes [2002] 2 WLR 1058, see also Fox v The Queen [2002] 2 WLR 1077.

134. In our view, because they are concerned with the death penalty, such assessments proceed on a qualitatively different footing and provide no authority for the assessment of proportionality regarding mandatory life sentences. For example, Chinnappa Reddy J in Mithu v State of Punjab, decided that the mandatory character of the death penalty in that case was objectionable because : -

135. Similarly, Lord Bingham in Patrick Reyes v The Queen cited numerous authorities that highlighted the peculiar gravity and irreversibility of the death penalty and stressed that the Privy Council was not considering the constitutionality "of any mandatory penalty other than death" (at para 43). Indeed, while the Privy Council struck down the mandatory death sentence in that case, the effect of its order was to remit the case to the trial judge for re-sentencing where the judge's options were either to impose a death sentence afresh as a matter of discretion or in default of doing so, imposing a mandatory life sentence under s 102 of the Belize criminal code (see paras 4 and 43). The Patrick Reyes case is therefore certainly no authority for the proposition that a mandatory life sentence is to be regarded as inhuman or degrading punishment.

Decisions of the Supreme Court of Canada

136. The conclusions we have reached above are consistent with decisions of the Supreme Court of Canada in R v Luxton (1990) 58 CCC (3d) 449 and R v Latimer (2001) 150 CCC (3d) 129, where it held that the mandatory life sentence for murder does not infringe relevant provisions of the Canadian Charter of Rights and Freedoms.

137. Under the Canadian Criminal Code as enacted at the times material to those judgments (RSC 1970, c C-34 and RSC 1985, c C-46 as amended) the sentence for murder was (and remains) mandatory life imprisonment: Criminal Code, s 235. The Code goes on to sub-divide murder into first and second degree murder. Murder is in the first degree when it is planned and deliberate. Furthermore, irrespective of whether it is planned and deliberate, murder is in the first degree where the victim is a police officer or a prison officer on duty; or where death is caused by the accused while committing or attempting to commit certain specified offences including, for example, sexual assault or kidnapping and forcible confinement. Murder that is not first degree murder is second degree murder: Criminal Code, s 231.

138. The convicted person is ineligible for parole, in the case of first degree murder, until he has served 25 years of his sentence; and in the case of second degree murder, until he has served 10 years, although the judge at the time of sentencing can specify a longer period of up to 25 years: Criminal Code, ss 745 and 754.4. However, after serving at least 15 years of the sentence, the offender may apply to the court for a reduction in the period of ineligibility for parole: s 754.6(1).

139. It follows that the Canadian system is one where, in respect of all murders, the mandatory life sentence, coupled with statutory minimum periods of ineligibility for parole, must be imposed by the court irrespective of the circumstances of the offence or the offender and notwithstanding differences in culpability in different cases. Thus, in the case of a mercy killing, the judge would have no choice but to impose a life sentence to which the statutory period of parole ineligibility will apply.

140. In R v Luxton, the appellant was convicted of first degree murder on the basis that he had killed the deceased in the course of forcible confinement, one of the specified first degree murder offences. His consequent liability to be sentenced mandatorily to life imprisonment without eligibility for parole for 25 years was challenged as an infringement of the principles of fundamental justice mandated by s 7 of the Charter as well as a violation of sections 9 (right not to be arbitrarily imprisoned) and 12 (right not to be subjected to cruel and unusual punishment). These arguments can be dealt with compendiously.

141. In submissions that found an echo in the present case, counsel for Luxton submitted that the principles of fundamental justice "require that differing degrees of moral blameworthiness in different offences be reflected in differential sentences, and that sentencing be individualized" (at 456). He argued that it was such a principle that "...... a just sentencing system contains a gradation of punishments differentiated according to the malignity of offences and that sentencing be individualized" (Ibid).

142. Lamer CJC (giving the principal majority judgment) accepted a need for proportionality but stressed that such proportionality did not rest on culpability alone but also on the pursuit of applicable principles of sentencing :-

Lamer CJC found support in a passage from La Forest J in R v Lyons [1987] 2 SCR 309, 328-9 as follows :-

143. Lamer CJC concluded that the mandatory life sentence with the mandatory minimum periods of ineligibility for parole were not unconstitutional, stating : -

The Court reached this conclusion pointing out that such murder cases all concern persons killing with a mens rea which involves subjective foresight of death, that the first degree murder category of killing in the course of committing offences like forcible confinement was a relatively narrow class and that Parliament had provided for a post-sentencing procedure whereby the offender could apply after 15 years to the court for his period of ineligibility for parole to be reduced. In relation to this latter consideration, the Court gave weight to the fact that Parliament had thereby "provided for some sensitivity to the individual circumstances of each case" (at 457).

144. R v Latimer was a case of mercy killing. The appellant was convicted of the second degree murder of his 12 year old daughter who was suffering from acute cerebral palsy and, although having the mental capacity of a four month old baby and most severely disabled, was not terminally ill. She was completely dependent on others for her care and suffered a great deal as a result of her condition, having had to undergo repeated surgeries. After learning that the doctors wished to perform an additional surgery, the appellant took his daughter's life by seating her in the cab of his pick-up truck and inserting a hose from the truck's exhaust pipe into the cab.

145. On conviction for second degree murder, he was liable to mandatory life imprisonment without eligibility for parole for a minimum of 10 years. However, the appellant contended that in the circumstances of the case, such a sentence amounted to cruel and unusual punishment contrary to s 12 of the Charter. The trial judge agreed and sentenced the appellant to one year's imprisonment and one year on probation, confined to his farm. The Court of Appeal reversed the judge and imposed the mandatory life sentence, carrying the mandatory minimum of 10 years without parole.

146. The appeal to the Supreme Court was dismissed. In a judgment of all its members, the Court noted that "...... the questions that arise in Mr. Latimer's case are the sort that have divided Canadians and sparked a national discourse" (para 4). The Court discussed the "grossly disproportionate" test for "cruel and unusual punishment", citing R v Smith (Edward Dewey) and later cases, as follows (para 76) :-

147. While it took all relevant factors into account, including "Mr Latimer's good character and standing in the community, his tortured anxiety about [his daughter's] well-being, and his laudable perseverance as a caring and involved parent" (para 85), the Court nonetheless stressed the culpability of the appellant notwithstanding the mercy killing features of the case :-

The Court held that the sentence was not grossly disproportionate.

The position in England and Wales

148. The legal regime for the treatment of mandatory life sentences for murder in England and Wales is in a state of flux. The regimes in Scotland and Northern Ireland have diverged from the English position as a result of statutory changes and need no further discussion here (see Stafford v UK paras 48-49). However, an understanding of the English position, which differs materially from the position in Hong Kong, requires a brief survey of its evolution.

149. A sentence of life imprisonment is on its face an indeterminate sentence. Traditionally, that is how it has in fact taken effect. The court sentences the offender to prison for an indefinite period, exercising its judicial power in a system which embraces the principle of the separation of powers. Thereafter, in the execution of the sentence, the constitutionality of non-judicial intervention in appropriate cases in pursuit of legitimate policy aims has been accepted. Thus, executive clemency, a system of sentence remission and a parole system to encourage the rehabilitation and re-integration into society of offenders who have been sufficiently punished, have been accepted as part of the institutional framework in which an indeterminate sentence is served. By the operation of such non-judicial measures, the life prisoner may, in appropriate cases, be released either unconditionally or on licence.

150. Mandatory life imprisonment has been the sentence for murder in the United Kingdom since 1965, when the mandatory death penalty was ultimately abolished. Like other life sentences, it was treated as an indeterminate sentence along traditional lines. However, in 1983, the Home Secretary announced that he would adopt the practice of fixing a "tariff" for each case of life imprisonment, both mandatory and discretionary, after consulting the trial judge and the Lord Chief Justice. The tariff would represent the punitive element of the sentence, reflecting what was required by way of retribution and deterrence. It would be the minimum period which the offender was to spend in prison. At its expiry, he would be released unless it was considered that there were grounds to continue his imprisonment. The decision as to whether to release the prisoner at the post-tariff stage was also to be made by the Home Secretary.

151. This practice, which has not been adopted in Hong Kong, inevitably raised important legal questions: see R v Home Secretary, ex parte Doody [1994] 1 AC 531. Did it alter the status of the judge's sentence and did the fixing of the tariff by the Home Secretary form part of the sentencing process? If so, was this a violation of the separation of powers principle? If it was to be treated as a sentence, what were the prisoner's rights at the expiry of the tariff period? On what grounds could he be kept in detention at that stage? Who ought to make that decision and subject to what procedures?

152. A number of challenges, both in the domestic courts and in the European Court of Human Rights in Strasbourg, followed. The first targets were discretionary life sentences. In Ex parte Doody, the rationale of the tariff system in relation to such discretionary sentences was described by Lord Mustill. A judge would impose such a sentence :-

153. In Weeks v UK (1987) 10 EHRR 293; and Thynne, Wilson and Gunnell v UK (1990) 13 EHRR 666, the Strasbourg Court held that this regime attracted the protection of ECHR art 5(4) which provides :-

The tariff approach raised the possibility that post-tariff detention might be unjustified by any legitimate purpose, where, for instance, the prisoner poses no risk to the public. Such detention might raise new issues as to its lawfulness. It would follow in such cases that ECHR art 5(4) requires there to be access to a body with judicial characteristics to determine whether continued detention is lawful. The United Kingdom practice was held to violate the article since the decision to continue the imprisonment was taken by the Home Secretary, a member of the executive, and not by a court or a sufficiently judicial body.

154. These decisions led to the United Kingdom's enactment of the Criminal Justice Act 1991 (later replaced by the Crimes Sentences Act 1997) which provides that discretionary life sentence prisoners are to have their tariffs fixed by the trial judge in open court and, that, at the expiry of the tariff period, it is the Parole Board which decides whether they should be released (the Parole Board being constituted with a sufficiently independent and judicial character for this purpose). Subsequently, after similar challenges in the Strasbourg Court (see, eg, Hussain v UK (1996) 22 EHRR 1 and V v UK (1999) 30 EHRR 121) juvenile murderers who had been sentenced to detention at Her Majesty's pleasure were assimilated by statute to the discretionary life sentence regime.

155. However, mandatory life prisoners continued to receive different treatment. The United Kingdom Government's justification in 1991 for excluding mandatory life sentences from the statutory scheme for discretionary life sentences was that mandatory sentences are different in principle. The Minister of State offered to the House of Commons the following explanation :-

156. As Lord Mustill pointed out, the government's stated position made it difficult to see why the 1983 decision to fix tariffs should be applied to such ostensibly indeterminate sentences : Ex parte Doody, at 551. Nonetheless, it remained the practice in England and Wales for a tariff to be fixed by the Home Secretary after conviction and imposition of the mandatory life sentence by the court, and for the post-tariff release decision to continue to be taken by him. In 1994, notwithstanding such controversy (of which it was aware), the Strasbourg Court in Wynne v UK accepted the United Kingdom's rationale for the difference in treatment and ruled that there was no violation of ECHR art 5(4) in cases where, by decision of the Home Secretary, a prisoner serving a mandatory life sentence continued to be detained in prison after expiry of the tariff period.

157. After the Human Rights Act 1998 entered into force, the executive's treatment of mandatory life cases came under attack in the domestic courts. They were asked to recognize that in reality, mandatory life sentences were not indeterminate sentences but, like discretionary life cases, were sentences determined on a tariff-fixing approach. In R (on the application of Anderson) v Home Secretary [2002] 2 WLR 1143, the court was invited to hold that the existing system violated ECHR art 6(1) in that tariff-fixing amounted to a sentencing function that could not properly be carried out by a member of the executive. In R (Lichniak) v Home Secretary [2001] 3 WLR 933 (CA), the court was asked to rule that where an offender had served the tariff period and was considered not to represent a danger, continued detention was arbitrary and an inhuman and degrading punishment which violated articles 3 and 5 of the ECHR. The appellants failed in each case because the Court of Appeal felt constrained by the acceptance of the Home Secretary's role in Wynne v UK and were awaiting clarification from Strasbourg in Stafford v UK, then pending. However, in the course of arguing the Anderson case, the Government's position as to the nature of a mandatory life sentence shifted to one of accepting that it was in reality a sentence determined on the tariff approach.

158. In Stafford v UK, a decision published after conclusion of the argument in the present case, the European Court of Human Rights has held, after a detailed review, that the United Kingdom's treatment of mandatory life sentences contravened ECHR arts 5(1) and 5(4). The Court held (a) that Wynne v UK was not definitive and should be re-examined; (b) that the domestic jurisprudence in England and Wales showed that there was in reality no difference in principle between mandatory and discretionary life sentences; (c) that the tariff-fixing exercise was part of the sentencing process; (d) that, accordingly, post-tariff period detention raised issues of potential unlawfulness and required compliance with ECHR 5(4), the UK being in contravention in that the decision whether to release after the tariff period was not taken by a body qualifying as judicial, but by the Home Secretary; and (e) that continued imprisonment pursuant to the Home Secretary's decision after expiry of the tariff period where there was no risk of violent offending infringed ECHR 5(1) which limits the deprivation of liberty, inter alia, to lawful detention after conviction by a competent court.

159. It is not at present possible to say what legal changes in England and Wales will result from the Stafford v UK decision. It may, for instance, be that mandatory life sentences will also be assimilated to the statutory regime currently in force for discretionary life sentences, in which case, the sentence for murder will remain a mandatory life sentence but the trial judge will fix a tariff period in open court and post-tariff release will be decided by the Parole Board. It is also quite possible that the sentence for murder may be changed to make it discretionary life imprisonment. For our purposes, it suffices to note that the system in Hong Kong is materially different. No tariff is fixed and mandatory life imprisonment continues to take effect as an indeterminate sentence along the traditional lines described above.

Mandatory life imprisonment and BOR art 5(4)

160. The appellants' next complaint is that the mandatory life sentence in Hong Kong contravenes BOR art 5(4) which provides :-

161. This article obviously bears a close resemblance to ECHR art 5(4) and is designed to take effect where an issue of unlawfulness may arise in relation to someone's detention. The survey of the position in England and Wales has shown how that article can be engaged even in relation to detention pursuant to an order for imprisonment lawfully made by a court, but only in the special circumstances thrown up by the tariff approach adopted in the United Kingdom. The article was engaged only in relation to the post-tariff period where fresh issues of possible unlawfulness could arise.

162. In Hong Kong, the tariff approach has never been applied and BOR art 5(4) is therefore not engaged in relation to prisoners serving mandatory life sentences. Detention of such prisoners is pursuant to the lawful order of the court made at the trial and on any subsequent appeal. Such proceedings satisfy the requirements of BOR art 5(4).

Mandatory life sentences and the right of review by a higher tribunal

163. Article 11(4) of the Bill of Rights provides :-

164. As the mandatory life sentence is a sentence fixed by law, there is no right of appeal solely against sentence: Criminal Procedure Ordinance, s 83G. But this produces no inconsistency with BOR art 11(4). What that article confers on persons who have been convicted of a crime is the safeguard of a second tier of judicial scrutiny. A convicted person is entitled to a review of his conviction and sentence by a higher tribunal with powers to overturn them. Such a safeguard exists in the present case. A person convicted of murder and sentenced to mandatory life imprisonment is entitled to appeal to the Court of Appeal which may, on allowing the appeal, overturn the conviction and sentence. BOR art 11(4) does not confer a separate right to launch an appeal limited to an appeal against sentence so as to prohibit sentences fixed by law. The requirements of the article are therefore satisfied by the existing procedure for appeal to the Court of Appeal.

Article 6(3) of the Bill of Rights

165. Article 6(3) of the Bill of Rights provides :-

166. Leaving aside the question whether and to what extent BOR art 6(3) is intended to confer rights on individuals, there are no materials before the Court to suggest that the system does not meet its requirements. The Prison Rules, Cap 234, indicate that the system is directed at the prisoners' reformation and rehabilitation. The extent of a prisoner's reformation and rehabilitation is also of central importance in the statutory scheme for review of sentences under the Review Ordinance.

Conclusion as to the mandatory life sentence for murder

167. For the reasons given above, the challenges to the constitutionality of the mandatory life sentence for murder fail.

168. We wish to emphasise that this conclusion is confined to the mandatory sentence for murder, arrived at taking into account the unique seriousness of the offence, the legal policies embodied in the sentence for such offence, the peculiar legislative history of such sentences and the statutory framework in which they are implemented. This reasoning would not be applicable to any other crime or any other sentence fixed by law.

169. We also wish to make two observations on current practice. First, as previously stated, regulations providing procedural safeguards for prisoners in relation to sentence reviews to be conducted should be promulgated as soon as practicable and in the meantime, the safeguards operated in respect of other prisoners should be applied administratively to prisoners serving mandatory life sentences.

170. The second observation concerns the judge's report. Where a mandatory life sentence is imposed, if the judge is of the opinion that there are matters relating to the person or the offence which should be recorded for the purpose of reviewing the sentence in the future, the judge must make a report in writing specifying those matters: Criminal Procedure Ordinance, s 67B(2). Any report made by a judge would be of assistance in reviewing the sentence. It is important for a judge to give consideration to the question of whether a report should be made. If he is minded to make one, the convicted person should, so far as practicable, be given an opportunity to be heard, represented by counsel if possible, before the report is made. Unless there are exceptional circumstances, he should also be provided with a copy of any report which is made.

Disposal of the appeal

171. Accordingly, the appellants' appeal is dismissed. There shall be an order for taxation of the 1st appellant's costs in accordance with the Legal Aid Regulations.

Mr Justice Chan PJ:

172. I agree with the judgment of the Chief Justice and Mr Justice Ribeiro.

Mr Justice Fuad NPJ:

173. I agree with the judgment of the Chief Justice and Mr Justice Ribeiro.

Sir Anthony Mason NPJ:

174. I also agree with the judgment of the Chief Justice and Mr Justice Ribeiro.

Chief Justice:

175. The Court unanimously dismisses the appellants' appeal. There shall be an order for taxation of the 1st appellant's costs in accordance with the Legal Aid Regulations.