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LONG-TERM PRISON SENTENCES REVIEW ORDINANCE - SCHEDULE 1
PROVISIONS APPLICABLE TO BOARD OF REVIEW
Remarks:
Amendments retroactively made - see 25 of 1998 s. 2; 15 of 1999 s. 3
[sections 6(5), 22(4),
24(1), 35(4) & 36(1)]
PART I
INTERPRETATION
1. Definitions
In this Schedule-
"committee" (小組委員會) means a committee established under section 15 of this Schedule;
"Deputy President" (副主席) means the Deputy President of the Board;
"judicial member" (司法界成員) means the President or Deputy President;
"member" (成員) means a member of the Board;
"non-judicial member" (非司法界成員) means a member other than the President or Deputy President;
"President" (主席) means the President of the Board.
PART II
BOARD MEMBERS
2. President and Deputy President of Board
(1) The appointment of a person who is a judge of the Court of First Instance as the President or Deputy President does not, nor does the person's service as the President or Deputy President, affect the person's tenure of office as a judge or the person's rank, title, status, precedence, salary or other rights or privileges as a holder of that office. (Amended 25 of 1998 s. 2)
(2) A person who is a judge may exercise the powers of a judge even though the person is the President or Deputy President.
3. Acting members
(1) The Deputy President is, during the illness or absence of the President, required to act as President and, while so acting, has all the functions and duties of the President and is taken to be the President.
(2) The Chief Executive may, from time to time, appoint a person who is or was formerly a judge of the Court of First Instance to act as Deputy President during the illness or absence of the Deputy President, and the person, while so acting, has all the functions and duties of the Deputy President and is taken to be the Deputy President. (Amended 25 of 1998 s. 2)
(3) If a non-judicial member has become ill or is absent from Hong Kong, the Chief Executive may appoint a qualified person to act in the office of the member during the period of the member's illness or absence, and that person, while so acting, has all the functions and duties of the member and is taken to be a member. For the purpose of this subsection, a person is qualified to act in the place of a non-judicial member only if the person has the same qualification for appointment as the member.
(4) The Chief Executive may, at any time, remove a person from an office to which the person was appointed under subsection (2) or (3).
(5) For the purposes of this section-(a) a vacancy in the office of President or Deputy President is taken to be an absence from the office of President or Deputy President; and
(b) the Deputy President is taken to be absent from the office of Deputy President when acting as President.
(Amended 15 of 1999 s. 3)
4. Terms of office
Subject to this Schedule, a member holds office for such period (not exceeding 3 years) as is specified in the member's document of appointment, but is eligible for reappointment (if otherwise qualified).
5. Vacancy in office of a member
(1) The office of a member becomes vacant on the death of the member or if the member-(a) completes a term of office and is not reappointed;
(b) resigns the office by writing under his or her hand addressed to the Chief Executive;
(c) is removed from office by the Chief Executive under subsection (2);
(d) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, makes an arrangement with his or her creditors or makes an assignment of his or her remuneration for their benefit;
(e) is convicted in Hong Kong of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in Hong Kong of an offence that, if committed in Hong Kong, would be an offence so punishable.
(2) The Chief Executive may remove a member from office at any time on the grounds of misconduct, incompetence, mental or physical incapacity or absence without leave.
(3) A member may be removed from office under subsection (2) only after an inquiry has been held to determine the allegations against the member of misconduct, incompetence, mental or physical incapacity or absence without leave and the member has been given an opportunity to be heard at the inquiry.
(4) Without prejudice to the operation of subsection (1)(e), the Chief Executive may remove a member from office at any time on the ground that he has been convicted in Hong Kong of an offence that is punishable by imprisonment or is convicted elsewhere than in Hong Kong of an offence that, if committed in Hong Kong, would be an offence so punishable.(Amended 15 of 1999 s. 3)
6. Filling of vacancy in office of member
If the office of a member becomes vacant, the Chief Executive must, subject to this Schedule, appoint a qualified person to fill the vacancy as soon as practicable after the vacancy occurs. For the purpose of this section, a person is qualified to fill a vacancy, only if the person has the same qualification for appointment as the member who has vacated office.(Amended 15 of 1999 s. 3)
7. Liability of members and others
No act done or omitted to be done by the Board, and no act done or omitted to be done by any member or by any person acting under the direction of the Board, if the act was done or omitted to be done in good faith for the purpose of giving effect to this or any other Ordinance, makes a member or a person so acting personally liable to any claim arising from having done or omitted to do that act.
8. Prevention of Bribery Ordinance to apply to members
The Prevention of Bribery Ordinance (Cap 201) applies to members in the same way as it applies to public servants.
PART III
MEETINGS AND PROCEEDINGS OF BOARD
9. Meetings of Board
(1) Except as otherwise provided by this Ordinance-(a) meetings of the Board are to be held at such times, dates and places as are fixed by the President; and
(b) the procedure for the convening of meetings of the Board and for the conduct of business at those meetings are to be as determined by the President.
(2) The Board may from time to time adjourn its proceedings to such times, dates and places and for such reasons as it thinks fit.
10. Quorum at Board meetings
The quorum for a meeting of the Board is a majority of the members of whom at least one must be a judicial member.
11. Presiding members
(1) The President, if present, is to preside at a meeting of the Board.
(2) If the President is absent from a meeting of the Board, the Deputy President, if present, is to preside at a meeting of the Board.
12. Board decisions
(1) A decision supported by a majority of the votes cast at a meeting of the Board at which a quorum is present, including the vote cast by a judicial member entitled to vote at the meeting, is the decision of the Board.
(2) If voting on a matter to be decided at a meeting of the Board is tied, the member presiding at the meeting has a casting vote.
(3) For the avoidance of doubt, it is hereby declared that section 51 of the Interpretation and General Clauses Ordinance (Cap 1) applies in relation to the Board.
13. Hearings of Board
(1) This section applies to the following orders-(a) an order amending or revoking a conditional release order relating to a prisoner;
(b) an order amending a supervision order relating to a prisoner or suspending the operation of such an order.
(2) The Board may make an order to which this section applies only if-(a) not less than 14 days before the day fixed for the purposes of paragraph (b), the prisoner has been provided with a copy of all relevant material to be considered by the Board in connection with the matter; and
(b) the prisoner has been given an opportunity to appear and be heard at a hearing held by the Board at a time, date and, subject to any regulations made under section 43(1)(f) of this Ordinance, place (which, with the consent of the Commissioner, may be a prison) fixed by the Board for the purpose.
(3) Despite subsection (2)(a), the Board is not required to provide the prisoner with a copy of that part of the material if the Board reasonably considers that the disclosure of any part of the material referred to in that paragraph would be likely-(a) to jeopardise the health or safety of any person; or
(b) to jeopardise the security of any detention facility; or
(c) to prejudice the conduct of any lawful investigation into any offence.
(4) If, in accordance with subsection (3), the Board declines to provide a copy of particular material, it must nevertheless provide such information concerning the material as may reasonably be disclosed to the prisoner, having regard to the factors specified in paragraphs (a) to (c) of that subsection. Subsection (2) applies to the provision of that information in the same way as it applies to the provision of a copy of relevant material.
(5) Before providing a copy of material, or information, in accordance with this section, the Board must invite the prisoner to indicate, within a specified period, which of the official languages is the prisoner's preferred language for the purposes of this section. If the prisoner indicates a preferred language within the specified period, the Board must ensure that the copy or information is provided in that language. If the prisoner does not indicate a preferred language within the specified period, the Board must ensure that the copy or information is provided in such of those languages as, in the opinion of the Board, the prisoner is capable of understanding.
(6) The Board may make an order to which this section applies even though a copy or information required to be provided under this section is provided to the prisoner less than 14 days before the date fixed for the hearing under this section, but only if good cause is shown as to why the copy or information could not have been provided before the beginning of that period.
(7) At a hearing under this section, the Board is not bound by the rules or practice as to evidence and may inform itself on any matter as it thinks appropriate.
(8) At the hearing, the prisoner concerned is entitled-(a) to be represented by a person of the prisoner's choice; and
(b) to adduce to the Board evidence (either orally or in writing), and to address the Board on matters, relevant to the determination of the hearing.
(9) The prisoner's representative is entitled-(a) to be present, and to advise the prisoner, throughout the hearing; and
(b) to address the Board on the prisoner's behalf.
(10) None of the following persons is eligible to represent the prisoner at the hearing-(a) a person who is or has at any time been subject to an order for detention under the Mental Health Ordinance (Cap 136);
(b) a person who is serving a sentence of imprisonment;
(c) a person who has served a sentence of imprisonment in Hong Kong.
14. Record of proceedings
(1) The member presiding at a meeting of the Board must ensure that a record of the proceedings at the meeting is made.
(2) Records made for the purposes of subsection (1) may be destroyed after the end of the period prescribed by a regulation.
15. Committees
The President may appoint one or more non-judicial members as a committee for the purpose of-(a) inquiring into and reporting to the Board on any sentence being served by any prisoner whose case is to come before the Board for consideration; and
(b) disposing of routine business of the Board.
16. Authentication of documents
Each document requiring authentication by the Board is sufficiently authenticated if it is signed by a person purporting to be the member who presided at the meeting of the Board when the proceedings with respect to which the document was prepared took place.
17. Certificate of Secretary
A document purporting to be a certificate made or issued by the Secretary to the Board recording any order or other decision of the Board is, in all courts and before all persons and bodies authorized by law to receive evidence, evidence of the matters set out in the certificate.
18. Proof of certain matters not required
In any legal proceedings, proof is not required, until evidence is given to the contrary, of-(a) the constitution of the Board; or
(b) any decision or recommendation of the Board; or
(c) the appointment of, or holding of office by, any member; or
(d) the presence or nature of a quorum at any meeting of the Board.