TNAG-1585-FCO40-2159-Hong-Kong-prisons-and-prisoners-1986 — Page 74

- 45

9787/82

THE LAW

The applicant complains that his re-detention in June 1977 was in breach of Art. 5(1) of the Convention which provides as follows:

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent

court;

He states that his re-detention was not in accordance with Art. 5(1)(a) since a minor conviction, after fifteen months of liberty, was not sufficiently serious to justify his re-detention on the foot of his earlier, unrelated conviction. He contends that the link was broken with his earlier detention and that his re-detention could only be lawful under the Convention if it was ordered by a court.

He further complains under Art. 5(4) that at the time of the revocation of his licence he was unable to have the lawfulness of his detention determined by a court. Nor was he able to have periodic review of the lawfulness of his detention at reasonable intervals throughout his imprisonment. This provision provides that:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

He submits that the remedy of habeas corpus does not lie in respect of a prisoner in execution of his sentence and that the courts are not willing to grant judicial review in respect of decisions of the Parole Board. Furthermore, he claims that the Parole Board cannot be considered a court for the purposes of Art. 5(4) since it is not an independent body and lacks sufficient procedural guarantees.

The Government maintain that the applicant was lawfully sentenced to life imprisonment and that by virtue of his sentence he could have been detained for the rest of his life. Accordingly, his detention is lawful by virtue of the original conviction and sentence. Moreover, it is clear from the applicant's dangerous behaviour at the time of the revocation of his licence that a sufficient connection existed between such revocation and the sentence of life imprisonment, for his re-detention to be justified under Art. 5(1)(a) on the basis of his original conviction.