Court/Judicial body: Hong Kong Court of First Instance
Date: August 14, 2003 CRC
Provisions: Article 1: Definition of a child Article 37: Torture and deprivation of liberty Article 40: Administration of juvenile justice
Other international provisions:International Covenant on Civil and Political RightsEuropean Convention on Human Rights
Domestic provisions: Criminal Procedure Ordinance (Section 67C: detention at Executive discretion); Hong Kong Bill of Rights (Section 3: torture or cruel, inhuman or degrading treatment or punishment); Hong Kong Basic Law ( Article 28: arbitrary or unlawful arrest, detention or imprisonment).
Background: A man was convicted of murder and sentenced to imprisonment at the discretion of the Executive for an offence committed when he was under the age of 18. He filed suit asking the Court to release him on the grounds that his continued imprisonment was unlawful as it amounted to cruel, inhuman and arbitrary punishment.
Issue and resolution: Juvenile justice; indeterminate sentences. The Court declined to release the prisoner, noting that an indeterminate sentence without a minimum term does not violate international human rights law.
Court reasoning: Indeterminate sentences are monitored by a review board, which considers certain principles of punishment (such as the nature of the offence, progress in rehabilitation, the risk of re-offending) and can recommend a determinate sentence if appropriate. The lack of certainty surrounding the sentence is not so severe that it would constitute cruel, inhuman, degrading or arbitrary punishment. Moreover, indeterminate sentences do not run contrary to Article 37 of the Convention on the Rights of the Child, which only forbids the imposition of sentences of life imprisonment without parole.
Excerpt citing CRC and other relevant human rights 21. In 1991, the Government of the United Kingdom ratified the United Nations Convention on the Rights of the Child, extending the Convention to Hong Kong in 1994. In June 1997, the Government of the People’s Republic of China informed the United Nations that the Convention would continue to be applied to Hong Kong after the change of sovereignty. Art.1 of the Convention says that, under the Convention, ‘a child’ means ” … every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.” 22. Art.37 of the Convention states: “States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offence committed by persons below eighteen years of age …” [my emphasis] 23. In terms of art.37, it is accepted therefore that life imprisonment may be imposed on a person under the age of 18 years provided the sentence shall not literally mean ‘for life’ and shall therefore contain the ‘possibility’ not certainty of release at some future date. In short, in respect of young offendors, the Covenant recognises that long-term indeterminate sentences are lawful. No mention is made in art.37 (or elsewhere in the Covenant) of the requirement to ensure that young offendors are provided with a yardstick to enable them to measure with any degree of certainty how long their indeterminate sentences will be. Instead, what is emphasised in the Covenant is the need to look to the reintegration of young offendors into society. Put simply, what is recognized is not the need for certainty but the need to look to rehabilitation. In this regard, art.40 of the Convention recognises “… the right of every child … having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.” [my emphasis] 24. Art.6(3) of the Bill of Rights also promotes rehabilitation but is silent on the issue of certainty. Art.6 in its entirety reads : “(1) All persons deprived of their liberty shall be treated with humanity and with respect of the inherent dignity of the human person. (2)(a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons. (b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. (3) The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.” [my emphasis]
CRIN comments: CRIN believes this decision is inconsistent with the CRC. While the CRC does not expressly forbid the imposition of sentences of life imprisonment on children, Article 37 of the Convention obligates States to only detain children as a matter of last resort and for the shortest appropriate period of time. Sentencing juvenile offenders to life imprisonment with a mere possibility of release at an uncertain time in the future is not in the spirit of the Convention, and every effort must be made to ensure that children in conflict with the law are reintegrated into society as quickly and completely as possible.
Citation:  HKCFI 639;  HKEC 1024
Link to full judgement: http://www.hklii.hk/cgi-bin/sinodisp/eng/hk/cases/hkcfi/2003/639.html?stem=&synonyms=&query=lai%20hung%20wai&nocontext=1