Punishment less harsh

PUBLISHED : Sunday, 13 June, 1999, 12:00am
UPDATED : Sunday, 13 June, 1999, 12:00am

Your editorial of May 24 raised some queries about the sentencing policy for offenders detained prior to re-unification at 'Her Majesty's Pleasure' (HMP), now known as Executive discretion.

Before the Long-term Prison Sentences Review Ordinance came into effect in June, 1997, the sentences of these HMP prisoners were reviewed by the then-Board of Review, Long-term Prison Sentences, every year until the prisoners reached the age of 21, and every two years thereafter.

Where the advisory board considered it appropriate, recommendations would be made to the governor for determinate sentences to be imposed. In reviewing the cases, the board had to balance the interests of the prisoners, against the interests of the wider community. However, the punitive and rehabilitative aspects were not clearly distinguished.

In recognition of the need to enhance the transparency and fairness of the review system, the Long-term Prison Sentences Review Ordinance was enacted. Under the ordinance, a statutory Long-term Prison Sentences Review Board (Long-term Board) was established to review all long-term and life sentences, including the HMP prisoners now detained at Executive discretion. The ordinance further makes provision for the Chief Executive to determine a minimum term of imprisonment for each prisoner detained at Executive discretion.

This concept of minimum term provides for an indeterminate sentence which consists of two parts - a 'tariff' period to be served for punishment and a subsequent 'discretionary' or 'protection' period during which the question of whether it would be safe to release the prisoner becomes decisive.

The ordinance has in fact brought the arrangements for review of long-term and life sentences in line with the principles promulgated by the European Court of Human Rights, a key source of human rights jurisprudence.

Under current arrangements, the determination of a minimum term is therefore a first step in the process of determining whether and when the affected prisoner could be released. In accordance with the Criminal Procedure Ordinance, the Chief Executive, in 1998, determined the minimum terms of the prisoners detained at Executive discretion having regard to the recommendations made by the Chief Justice and the written representations made by the prisoners.

Upon determination of the minimum terms, their cases have been referred to the Long-term Board. The review for each prisoner would take place every two years and also six months before his minimum term of imprisonment is due to end. In reviewing a case, the board is required to consider, among other things, whether the prisoner has completely rehabilitated. On review of a case, the board may recommend to the Chief Executive substituting a prisoner's indeterminate sentence with a determinate sentence.

The arrangements introduced under the Long-term Prison Sentences Review Ordinance recognise the propensity of young people to change as they mature. Compared to the indefinite HMP arrangements before June, 1997, the determination of a minimum term of imprisonment introduces a greater element of certainty into the process in that a young prisoner will know the minimum period he must serve before being considered eligible for release.

The regular reviews further ensure the prisoner's case will be duly monitored and considered by the Long-term Board in considering its recommendations to the Chief Executive.

There is no question of the current arrangement imposing harsher punishment on prisoners detained at Executive discretion as compared to arrangements under HMP.

SARAH KWOK for Secretary for Security