Ma Chun Man v Commissioner of Correctional Services [2025] 1 HKLRD 305, [2024] HKCFI 3531

Steven Kwan, Albert NB Wong, Jason Ko, and Yvonne Leung represented the applicant in Ma Chun Man v Commissioner of Correctional Services [2025] 1 HKLRD 305, [2024] HKCFI 3531.

The Safeguarding National Security Ordinance (the SNSO) (Instrument A305) which came into force on 23 March 2024 introduced amendments to the Prison Rules (Cap.234A, Sub.Leg.) (the PR), the Post-Release Supervision of Prisoners Ordinance (Cap.475) (the PRSPO) and the Post-Release Supervision of Prisoners Regulation (Cap.475A, Sub.Leg.) (the PRSPR). The amendments, inter alia, raised the threshold for prisoners convicted of offences endangering national security (OENS) to obtain remission of sentence or early release by requiring the Commissioner of Correctional Services (the Commissioner) to first decide whether such remission or early release “will not be contrary to the interests of national security” (the NS Test). Where the Commissioner decided that the NS Test was not passed, he “must not” refer the prisoner’s case to the Post-Release Supervision Board (the Supervision Board) for consideration of early release where the PRSPO applied, or “must not” grant remission where the PRSPO did not apply, under the newly introduced s.6(3A) of the PRSPO and r.69(1A) of the PR respectively. Accordingly, such prisoner could not in law be granted remission or early release on the ground of industry and good conduct which may otherwise be up to one-third of the total term of imprisonment and period spent in custody subject to any disciplinary penalties. Rule 69(1A) of the PR and s.6(3A) of the PRSPO both have retrospective effect so as to apply to OENS prisoners whose sentences were imposed before the commencement of the new provisions. The SNSO also amended Sch.1 of the PRSPR to extend the supervision scheme under the PRSPO to cover OENS prisoners sentenced to 2 years’ imprisonment or more. Further, s.8(3) of the SNSO is an overarching provision which states that any function conferred by Hong Kong law on a person is to be read as including a duty to safeguard national security, and any person in making any decision in the performance of such function must regard national security as the most important factor and give appropriate consideration to it.

X was convicted of incitement to secession, contrary to arts.20 and 21 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (the NSL) and had already served about two-thirds of his 5-year sentence. X’s case was that the Commissioner could have granted him remission on the ground of industry and good conduct from 25 March 2024. However, after the SNSO came into force on 23 March 2024, the Commissioner considered the recommendation of the Board of Assessment on Person in Custody Having Committed Offence Endangering National Security (the Assessment Board) and other factors and was not satisfied that the NS Test was passed, on the grounds inter alia that X did not show genuine remorse for his offence and there was insufficient information to show that X had fully rehabilitated or renounced his radical ideology. On 25 March 2024, the Commissioner therefore decided under s.6(3A) of the PRSPO not to refer X’s case to the Supervision Board for consideration. X sought leave to apply for judicial review to challenge that decision on the grounds, inter alia, that: (i) r.69(1A) of the PR and s.6(3A) of the PRSPO were not “prescribed by law” and in breach of arts.5 and 6 of the Hong Kong Bill of Rights (the BOR) (Ground 1); (ii) those provisions were in breach of art.12(1) of the BOR insofar as they have retrospective effect (Ground 2); (iii) the decision was in breach of X’s legitimate expectation that an early release would be granted (Ground 3); (iv) the decision was tainted by procedural unfairness (Ground 5); (v) the decision was Wednesbury unreasonable (Ground 6); and (vi) the decision was disproportionate (Ground 7).

Held, granting leave to apply for judicial review only on Ground 5, and dismissing the substantive application for judicial review, that:

Operation of s.6(3A) of the PRSPO

• (1) Section 6(3A) of the PRSPO did not give rise to any “presumption” against referral of the OENS prisoner’s case to the Supervision Board or a burden of proof on the prisoner to rebut that presumption. The NS Test was a risk assessment and a holistic, predictive and evaluative exercise based on a consideration of all relevant factors, including the prisoner’s determination to turn over a new leaf, background, institutional behaviour, rehabilitation progress, psychological assessment, and whether the prisoner had a tendency to recommit an OENS offence (Secretary of State for the Home Department v Rehman [2003] 1 AC 153, HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33 considered). (See paras.78-83.)

Ground 1: “Prescribed by law”

• (2) There was no violation of art.6 of the BOR. The possibility of a prisoner having to serve the full sentence did not of itself deprive him or her of the opportunity to reform and rehabilitate or amount to inhumane treatment. Nor would the NS Test render OENS prisoners facing long term imprisonment with no prospect of early release as the Commissioner must review the decision of non-referral annually under s.6(3C) of the PRSPO (Soering v United Kingdom (1989) 11 EHRR 439, HKSAR v Li Cheng Hong [2011] HKEC 2720 considered). (See paras.95-98.)
• (3) The NS Test would not lead to arbitrary detention in violation of art.5 of the BOR as a sentence of imprisonment provided legal authority for a prisoner’s detention throughout the term of the sentence, notwithstanding that the prisoner might expect early release (R (Khan) v Secretary of State for Justice [2020] 1 WLR 3932 applied). (See para.99.)
• (4) Under the “prescribed by law” requirement, the law must be adequately accessible and formulated with sufficient precision to enable citizens to regulate their conduct, although the consequences of a given action need not be foreseeable with absolute certainty. The threshold for holding a law to be vague was high (Esbester v United Kingdom (1994) 18 EHRR CD 72, Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381, [2002] 2 HKLRD 793, Lau Cheong v HKSAR (2002) 5 HKCFAR 415, [2002] 2 HKLRD 612, Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, [2005] 3 HKLRD 164 applied). (See paras.100-102.)
• (5) The NS Test did not violate the prescribed by law requirement as it was sufficiently precise and certain and capable of giving sufficient guidance as to how a prisoner should conduct himself or herself in prison for earning early release. “National security” was a defined term under s.4 of the SNSO, the meaning of which also applied to s.6(3A) of the PRSPO. Even assuming that the test in art.42 of the NSL of “not continue to commit acts endangering national security” in respect of bail applications was stricter than the NS Test, the different test was justified in the context of the PRSPO because of the status of the prisoner as a convicted person, the legality of the sentence and the crucial importance of safeguarding national security and protecting the public from serious harm (Secretary of State for the Home Department v Rehman [2003] 1 AC 153, Kennedy v United Kingdom (2011) 52 EHRR 4, HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33 considered). (See paras.103-115.)

Ground 2: Retrospectivity

• (6) Article 12(1) of the BOR was not engaged. Legislative changes in the execution or enforcement of a penalty affecting existing prisoners did not violate the principle against retrospectivity. A non-referral of an OENS prisoner’s case to the Supervision Board under s.6(3A) of the PRSPO was not a penalty but a measure of the execution or enforcement of a penalty which had been passed by the court. There was no question of X being subject to any additional or heavier penalty by the operation of s.6(3A) (R (Uttley) v Secretary of State for the Home Department [2004] 1 WLR 2278, Uttley v United Kingdom (Admissibility) (36946/03) [2009] Prison LR 1, Lui Tat Hang Louis v Post-Release Supervision Board [2010] 1 HKC 297, R (Khan) v Secretary of State for Justice [2020] 1 WLR 3932, Morgan v Ministry of Justice [2024] AC 130 applied). (See paras.117-118.)

Ground 3: Legitimate expectation

• (7) The courts would not give effect to a legitimate expectation if it would require a public authority to act contrary to the terms of a statute. While there was a general practice that prisoners would be released early after serving two-thirds of their sentences, after the SNSO came into force, once the Commissioner decided that X had failed in the NS Test, he could not in law refer the case to the Supervision Board (R v Secretary of State for Education and Employment [2000] 1 WLR 1115, Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1, [2002] 1 HKLRD 561, Cheung Kin Ho v Registration of Persons Tribunal [2014] 3 HKLRD 526 applied). (See paras.56, 120-122.)

Ground 5: Procedural unfairness

• (8) X had been informed of the factors considered by the Assessment Board and given reasonable and sufficient opportunity to prepare his representation. The Commissioner had considered X’s written representation before making his decision and had given adequate reasons for the decision. An oral hearing was not necessary. Despite an initial failure to disclose certain information that would be considered against X, the decision-making process as a whole was not procedurally unfair and no actual prejudice was caused to X. Leave to apply for judicial review was granted for Ground 5 but the substantive judicial review on this ground was dismissed (Financial Secretary v Wong (2003) 6 HKCFAR 476, [2004] 1 HKLRD 303, Ng Shek Wai v Hong Kong Institute of Certified Public Accountants [2019] HKCFI 2439 considered). (See paras.156-160.)

Ground 6: Wednesbury unreasonableness

• (9) The Commissioner’s decision was not Wednesbury unreasonable. It was the duty of the Commissioner, not the Supervision Board, to decide whether X’s early release would pass the NS Test. The courts would generally defer to the opinion of the executive on what was required to protect national security, unless it was considered that no reasonable executive could have come to the conclusion in the circumstances. It could not be said that no reasonable decision-maker possessed of the relevant materials could suppose that the Commissioner’s inquiries were sufficient (Smart Gain Investment Ltd v Town Planning Board (HCAL 12/2006 and 12/2007, [2007] HKEC 1964), R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662, Ho Loy v Director of Environmental Protection (HCAL 21 and 22/2015, [2016] HKEC 2751), Secretary for Justice v Persons Conducting in Acts Prohibited Etc (274/2023, 303/2023) (Use of Protest Song) [2024] 3 HKLRD 32 applied). (See paras.163-166.)

Ground 7: Disproportionality

• (10) X’s argument that the Commissioner’s decision was disproportionate failed as he was unable to identify any constitutional right said to be prejudiced by the non-referral to the Supervision Board. (See para.171.)

Practical utility

• (11) (Obiter) What was meant by “national security” was a question of construction and therefore a question of law. On the other hand, the question of whether something was “in the interests” of national security was not a question of law. It was a matter of judgment and policy. Even as a matter of common law, full weight should be given to the opinion of the Committee for Safeguarding National Security of the HKSAR as to whether X’s early release would not be in the interests of national security. It was a matter to which the court should defer to the executive (Secretary of State for the Home Department v Rehman [2003] 1 AC 153 applied). (See para.177.)

[The above is excerpted from the headnote to the report in HKLRD.]