LCQ5: Chief Executive to exercise power and function to pardon persons convicted of criminal offences or commute their penalties
It has been reported that quite a number of heads of states or regions exercise from time to time their powers to pardon prisoners. For example, at the end of last year, the French President pardoned a woman who had shot her husband to death because she had been subject to years of serious and physical abuse by her husband. During his eight-year tenure, the last President of the United States pardoned a total of 1 385 prisoners, 395 of whom being prisoners sentenced to life imprisonment. Article 48(12) of the Basic Law also provides that the Chief Executive (CE) may exercise his powers and functions to "pardon persons convicted of criminal offences or commute their penalties". On the other hand, as at the end of January this year, a total of 1003 persons were arrested by the Police during and after the occupation movement in 2014, and 216 arrestees have undergone or are undergoing judicial proceedings. Among them, 123 persons have to bear legal consequences (i.e. 81 were convicted and 42 were bound over). There are views that quite a number of young people participating in the occupation movement have inadvertently broken the law in pursuit of their ideals, and a small number of law enforcement officers were convicted because they had treated arrestees in an improper manner while they were under provocation. In this connection, will the Government inform this Council whether CE will follow the practice of the heads of other places to pardon some of the aforesaid persons or commute their penalties; if so, of the details; if not, the reasons for that?
Under Article 48(12) of the Basic Law (BL 48(12)), the Chief Executive (CE) shall exercise the power and function to pardon persons convicted of criminal offences or commute their penalties. Such power is commonly referred to as "prerogative of mercy" . The Basic Law does not prescribe in detail the circumstances under which such power may be exercised. However, as the exercise of such power will in effect alter the sentence passed by the Court, the CE would consider prudently and in detail all the relevant factors before deciding whether to pardon or commute the penalties. I will briefly describe some circumstances hereafter.
First, the CE may decide to commute the penalties based on the recommendations by the Long-term Prison Sentences Review Board (the Board). The Board is an independent statutory body established pursuant to the Long-term Prison Sentences Review Ordinance, Laws of Hong Kong (Cap. 524) (the Ordinance). Its main functions include reviewing the indeterminate sentences or long-term prison sentences of 10 years or more of persons in custody (PICs) and the determinate sentences of PICs who were under the age of 21 at the time of conviction. Under section 6 of the Ordinance, the Board shall consist of 8 to 11 members appointed by the CE. The President and Deputy President must be judges or former judges of the Court of First Instance. Other members include persons with expertise and experience in various disciplines such as psychiatry, psychology, social work, law, education, commerce and industry, etc. Under section 11 of the Ordinance, the Commissioner of Correctional Services shall refer cases of PICs serving the aforementioned sentences to the Board for sentence review in accordance with the stipulated review schedules. The Board would review each case prudently and consider in detail all the relevant factors, including the nature of the offence committed by the PIC, the length of the sentence already served, whether the PIC has repented his wrongdoing, and the possible impact on public safety, etc. Where sufficient justifications have been found after a thorough consideration of all the relevant factors, the Board may recommend to the CE that a determinate sentence be commuted, or an indeterminate sentence be substituted by a determinate one. The CE will consider prudently and in detail the recommendation by the Board and decide whether to commute the penalties in accordance with BL 48(12).
In another possible circumstance, under Rule 148(2) of the Prison Rules (Cap. 234A), "the Medical Officer shall make his recommendations in writing to the Commissioner for his transmission to the Chief Executive whenever he is of opinion that any prisoner will be endangered by his continuance in prison, or that any sick prisoner will not survive his sentence, or is totally or permanently unfit for prison sentence." Under this circumstance, the CE would consider whether or not to exercise his power under the said provision under the Basic Law.
A third possible circumstance concerns petitions by PICs to the CE seeking pardon or commutation of penalties. Upon receipt of a petition, the Administration will seek legal and professional advice, including the advice of the Solicitor General of the Department of Justice and other relevant government departments, and then submit to the CE for his prudent and detailed consideration of whether to pardon or commute the penalties in accordance with BL 48(12). In the past, the grounds on which PICs who petitioned have invoked include humanitarian grounds, or that the PIC had given substantial assistance to the prosecution while serving his sentence, etc.
As for the Member's concern on whether the CE will pardon or commute the penalties of the individuals mentioned in the question, as I have just said, the CE will independently consider each case prudently and in detail. However, the Government will not comment on individual cases. Besides, according to past practices, the CE would not exercise his power and function to pardon persons convicted of criminal offences or commute their penalties prior to the completion of all judicial proceedings for a case.
Thank you, President.
Ends/Wednesday, March 1, 2017
Issued at HKT 15:07
Issued at HKT 15:07