Agar Chromocult (CCA)

The Governor of Hong Kong, under Article XV of Hong Kong Letters Patent 1917 to 1995 “…may grant to any offender convicted of any crime or offence by any court of law in the Colony (other than a court martial established under any Act of Parliament), either free or subject to such conditions as the Governor may think fit to impose, a pardon or any remission of the sentence passed on such offender, or any respite of the execution of such sentence for such period as the Governor thinks fit, and may remit any fines, penalties, or forfeitures due or accrued to Us.”³⁵

Furthermore, Clause XXXIV of the Royal Instructions requires the Governor of Hong Kong to examine all sentences of death cases and “not to pardon or reprieve any such offender unless it shall appear to him expedient so to do, upon receiving the advice of the Executive Council thereon; but in all such cases he is to decide either to extend or withhold a pardon or reprieve, according to his own deliberate judgment, whether the Members of the Executive Council concur therein or otherwise, entering nevertheless on the Minutes of the Executive Council a Minute of his reasons at length, in case he

35 See Hong Kong Legal Institute, HKU@ http://www.hklii.org/hk/legis/en/ord/2701.txt.

should decide any such questions in opposition to the judgment of the majority of the Members thereof.”³⁶

From available records, it is noted that not all death sentences passed by the court were carried out and a significant number of these cases being commuted. Chan (1988) in his research on Hong Kong Government’s policy on capital punishment³⁷ nevertheless believed that prior to 1966 when execution was still being practiced in Hong Kong, the Governor seldom took pro-active action in reviewing these death sentence cases unless the condemned prisoners petitioned to him for clemency. When going through the Executive Council papers from 1954 to 1956, Chan found that all the fifteen petitions from the condemned prisoners during this period were turned down with a standard remark written in the meeting minutes that "Council advised and the Governor ordered that the law should take its course." ³⁸

In Hong Kong, as in England, the death penalty could only be passed on prisoners who committed the offences of treason, piracy with violence and murder.³⁹ England in 1965 had basically abolished the death penalty for murder under the Murder (Abolition of the Death Penalty) Act 1965 and in 1969 abolition was made permanent by resolution of both Houses of Parliament. Similar legislation was however not being initiated in Hong Kong as the government in Hong Kong had received no such pressure from the public to amend the existing ordinances.

36 Miners, N. (1995) The Government and Politics of Hong Kong, Hong Kong: Oxford University Press, p.79.

37 See Chan, W. K. (1988) ‘An Analysis of the Hong Kong Government’s Policy on Capital Punishment.’ MSc (Public Adm.) Thesis, University of Hong Kong.

38 Ibid, p.12.

39 Apart from the seven offences carrying death penalty enacted during the period of Military Administration.

Chan (1988) noticed that the Governor in Hong Kong had since the last execution in November 1966 commuted all death sentence cases to that of determined sentences.⁴⁰ This practice was the result of the Governor acting either on instructions from the Secretary of State or anticipating his adverse reactions to the infliction of the death penalty after it had been abolished in Britain.⁴¹ The commutation of death sentence had generated discontent and negative feelings in Hong Kong and there had been from time to time calls to reactivate the death sentence in Hong Kong.⁴²

In 1973, the Governor had taken the rare move in refusing to exercise the prerogative of mercy on the death sentence of Tsoi Kwok-cheung in view of the mounting public pressure. There was opposition to the Governor’s move and seventy signatures were collected from church leaders, lawyers, academics etc in Hong Kong asking the Queen to exercise pardon when Tsoi petitioned the Queen for clemency. There were on the other hand strong views expressed by the people of Hong Kong including students and even Buddhist leader backing the Governor’s decision.⁴³ The Queen did intervene on the advice of the Secretary of State and a pardon was granted to Tsoi on 15 May 1973.⁴⁴ This result came as no surprise as the pro-death sentence groups in England were once again being defeated in the House of Common on 11 April 1973 on the move of reintroducing death penalty in Britain.⁴⁵

This rare intervention from Britain, not based on the concern for a possible miscarriage of justice, was regarded by Liu (1992) as “an attempt to procure Hong Kong’s conformity with the United Kingdom Parliament’s decision to abolish the

40 Chan, W. K. (1988) op cit., p. 12.

41 Minor, N. (1995) op cit., p.79.

42 South China Morning Post, 2 May 1973.

43 Ibid, 3 May 1973.

44 Ibid, 16 May 1973.

45 The Economists, 14 April, 1973.

death penalty in the United Kingdom.”⁴⁶ The Chinese press in Hong Kong expressed great dissatisfaction with London’s interference and feared such action would fume up more violent crimes in Hong Kong, especially when Hong Kong had just commenced its Fight Violent Crime Campaign.⁴⁷ No further attempts by the successive Governors in refusing to exercise the prerogative of mercy on the death sentences happened after 1973 “as it seems extremely unlikely that any Governor will risk such an open rebuff again, now that both the major political parties in Britain have made their position on executions clear.”⁴⁸

Life imprisonment was on the other hand being introduced as an alternative for some of the commuted death sentence cases after 1973. This move was promoted by one of the leading English newspaper in Hong Kong with its editorial commenting the jurors were reluctant to convict murder charges and preferred to opt for the lesser charge of manslaughter for which they do not have to pass the mandatory death sentence to the convicted murderers.⁴⁹ With an increase of serious crimes in Hong Kong, the demands from the community, including Legislators, The Hong Kong General Chamber of Commerce and civic groups to resume capital punishment were raised time and again.⁵⁰. A senior police officer on the other hand commented that “the desire for the death penalty is motivated by social vengeance not justice” as the murder cases in Hong Kong had in fact dropped from 115 to 110 and 102 cases in 1972, 1973 and 1974 respectively.⁵¹

46 Liu, A. (1992) ‘The Right to Life’ in Wacks, R. (ed.) Human Rights in Hong Kong. Hong Kong:

Oxford University Press, p. 272.

47 See Wah Kiu Yat Po and Ming Pao, 19 May 1973.

48 Minor, N. (1995) op cit., p.84.

49 South China Morning Post, 16 October 1974 and 19 April 1975.

50 See South China Morning Post, 24 July 1974, 1 May 1975, 25 August 1975, 21 October 1975, 23 October 1975 and Hong Kong Standard, 12 October 1975.

51 Hong Kong Standard, 26 October 1975.

The public sentiment in favour of resuming capital punishment in Hong Kong was addressed by the Colonial Secretary at the Legislative Council meeting held in November 1975. He remarked that the “great majority of the Hong Kong population are convinced that the death penalty would serve as a substantial deterrent to violent crime. It is also the common view that even if it does not deter, then it should be imposed as a measure of the outrage of the community and because it is widely believed that evil conduct should be visited by punishment.”⁵²

The Colonial Secretary on the other hand explained to the Legislators the practical difficulties on why capital punishment could not be re-activated in Hong Kong owing to the opposition in England, in particular views of the House of Commons. As condemned prisoners could petition to the Queen for clemency and her decision would have to be based on the advice of the Secretary of State for Foreign and Commonwealth Affairs, who, in making his advice to the Queen, had to take heed of the reaction of the Parliament. It was of the opinion that “they would not be supported in the House of Commons if they were to advise that death sentences should be carried out in Hong Kong. Moreover, there are no signs that this attitude of the House of Commons is likely to change in the immediate future.”⁵³ To address the concerns in Hong Kong, the Colonial Secretary raised the motion in the Legislative Council in 1975 that:

"In future, whenever he commutes a death penalty, the Governor will impose the alternative punishment of life imprisonment, unless, in exceptional circumstances, he feels able to accept advice from Executive Council that a lesser sentence should be imposed."⁵⁴

52 Hong Kong Hansard, 6 Nov 1975: 224.

53 Ibid.

54 Ibid, p. 225.

The Attorney General further clarified that life sentence “will mean precisely what it says and a prisoner will not be released to society again for the term of his natural life. The only exception will be where there are very compelling humanitarian grounds.”⁵⁵