Ma Chun Man v Commissioner of Correctional Services [2025] 3 HKLRD 832, [2025] HKCA 585 (Steven Kwan, Albert NB Wong)
Steven Kwan and Albert NB Wong represented the applicant in Ma Chun Man v Commissioner of Correctional Services [2025] 3 HKLRD 832, [2025] HKCA 585.
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 and had served around two-thirds of his sentence of 5 years’ imprisonment by the latter part of March 2024. Before the Safeguarding National Security Ordinance (Instrument A305) (the SNSO) came into force on 23 March 2024, the Commissioner of Correctional Services (the Commissioner) maintained a general practice under the statutory regime for remission of sentence that a person in custody might be granted remission on the ground of his industry and good conduct after serving two-thirds of his sentence. Under s.6(3A) of the Post-Release Supervision of Prisoners Ordinance (Cap.475) (the PRSPO) which was introduced by the SNSO, the Commissioner must not refer to the Post-Release Supervision Board (the Supervision Board) for its consideration of remission of cases of persons in custody serving sentences in respect of their convictions of offence(s) endangering national security unless he was satisfied that it would not be contrary to the interests of national security. The SNSO also extended the supervision scheme under the PRSPO to cover persons convicted of offence(s) endangering national security sentenced to 2 years’ imprisonment or more. 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 early release of X would not be contrary to the interests of national security. The Commissioner therefore decided not to refer X’s case to the Supervision Board under s.6(3A) of the PRSPO. X applied for leave to apply for judicial review to challenge that decision. The Judge granted leave on the ground of procedural unfairness only but dismissed the judicial review and refused to grant leave on the other grounds (see [2025] 1 HKLRD 305). X appealed. He contended that his right to liberty under art.5(1) of the Hong Kong Bill of Rights (BOR 5(1)) was infringed on the grounds that the threshold in s.6(3A) of the PRSPO based on the interests of national security deprived him of a statutory right to have his case referred to the Supervision Board, and that it fell foul of the “established by law” requirement as it was inherently vague or arbitrary. He further argued that the Commissioner’s decision was in breach of his legitimate expectation and was tainted by procedural unfairness.
Held, dismissing the appeal, that:
(1) The right to liberty under BOR 5(1) was not engaged and the constitutional challenge failed in limine . An imprisonment which X was serving was incarceration pursuant to a sentence lawfully imposed by the court after a criminal conviction. The resultant deprivation of his liberty pursuant to the imprisonment was lawful. As such it would not per se engage BOR 5(1). X had not enjoyed any previous statutory right to referral to the Supervision Board because the PRSPO did not apply to X before the SNSO came into force. Further, X did not have any statutory right to referral unless the Commissioner was satisfied that his early release would not be contrary to the interests of national security under s.6(3A) of the PRSPO. Moreover, whether the Supervision Board would grant an early release was discretionary and did not confer on X any right or entitlement to early release upon serving two-thirds of his sentence (Lui Tat Hang Louis v Post-Release Supervision Board [2010] 1 HKC 297, Wong Tak Wai v Commissioner of Correctional Services [2010] 4 HKLRD 409, Fu Man Kit v Superintendent of Tai Lam Correctional Institution [2022] 1 HKLRD 219 applied; Morgan v Ministry of Justice [2024] AC 130 distinguished). (See paras.39-40, 50-61.)
(2) Even if the right to liberty under BOR 5(1) were engaged, the threshold in s.6(3A) of the PRSPO based on the interests of national security did not fall foul of the “established by law” requirement. Threats to national security may vary in character and may be unanticipated or difficult to define in advance. The requirement of legal certainty did not necessarily require a comprehensive definition of the notion of the interests of national security. The statutory definition of “national interest” in s.4 of the SNSO was broad but not inherently vague or arbitrary. Its purpose was clear. It covered the four key constituents of the state: (i) its political regime; (ii) its sovereignty; (iii) its unity and territorial integrity; and (iv) its people and the society they lived in. It embraced and protected national sovereignty; territorial unity; development, sustainability, economic and other major societal interests; and the well-being of its people. While it was broadly framed to provide flexibility, it had a sufficiently and clearly formulated core to enable a person, with advice if necessary, to understand what national security covered and to regulate his conduct accordingly (Esbester v United Kingdom (1994) 18 EHRR CD72, Kennedy v United Kingdom (2011) 52 EHRR 4, Winnie Lo v HKSAR (2012) 15 HKCFAR 16, HKSAR v Tam Tak Chi [2024] 2 HKLRD 565 considered). (See paras.63-68, 74.)
(3) The argument that the assessment under s.6(3A) of the PRSPO lacked safeguards was rejected. First, the executive was the only authority qualified to carry out the assessment on national security. The absence of prior judicial scrutiny was not objectionable. The Assessment Board composed of Correctional Services Department officers but not non-government individuals as suggested comprising judges, legal professionals and lay members was also appropriate. Further, national security assessments were inherently evaluative and predictive and did not engage an evidential burden. Moreover, s.6(3C) required the Commissioner to carry out an annual review of his decision of non-referral under s.6(3A). The availability of judicial review also served as a useful check over any arbitrary exercise of power by the Commissioner (Secretary of State for the Home Department v Rehman [2003] 1 AC 153 applied; Secretary for Justice v Persons Conducting in Acts Prohibited Etc (274/2023, 303/2023) (Use of Protest Song) [2024] 3 HKLRD 32 considered). (See paras.12, 63, 69-74.)
(4) Even if X could establish a legitimate expectation of remission or early release after serving two-thirds of his sentence for his good behaviour and industry, it was wholly irrelevant to the assessment based on the interests of national security under s.6(3A) of the PRSPO. This complaint failed. (See para.77.)
(5) The complaint of procedural unfairness, while justifying the grant of leave to apply for judicial review, failed in substance. X had been given a reasonable opportunity of learning what was alleged against him and of putting his own case in answer to it. His right to sufficient information in the process had not been compromised. (See para.79.)
This was an appeal against the judgment of Alex Lee J granting leave to apply for judicial review on one ground but dismissing the judicial review and refusing to grant leave on the other grounds against the decision of the Commissioner of Correctional Services refusing to refer the case of the applicant, who was serving a sentence for an offence endangering national security, to the Post-Release Supervision Board for consideration of early release, pursuant to s.6(3A) of the Post-Release Supervision of Prisoners Ordinance (Cap.475) as introduced by the Safeguarding National Security Ordinance (Instrument A305) (see [2025] 1 HKLRD 305).
[The above is excerpted from the headnote to the report in HKLRD.]
