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Cliff Buddle

WHEN THE COURT of Final Appeal ruled on the case of two murderers last week, its decision attracted little attention. But the legal challenge could have caused chaos, and officials had been anxiously awaiting the result.

If lawyers for the convicted killers had been successful in their arguments, the government may have been forced to release virtually every murderer on to the streets, around 300 in all.

'It would have had very serious ramifications and would have affected large numbers of people already serving their terms,' said Director of Public Prosecutions Grenville Cross, SC.

Under threat was both the long-standing legal definition of murder and the automatic passing of a life sentence on anyone convicted of what is regarded as the most serious of crimes.

The mandatory sentence, it was argued, 'falls foul of our constitutional safeguards against arbitrary imprisonment, cruel, inhuman or degrading punishment and inequality before the law'.

If the arguments had been successful, they would have prompted a flood of fresh appeals from prisoners serving life sentences.

Given the potential for havoc, it is perhaps not surprising the five judges rejected the arguments.

But the case was more than a doomed attempt by clever lawyers to get their clients off the hook. It was taken very seriously by the government and the judges, who considered the arguments for three months.

The issues have also troubled judges in Canada and Europe as they grappled with ways of ensuring the treatment of killers complies with international standards on human rights. As well as the legal issues, the case highlighted the way prisoners serving life sentences are considered for release.

An independent board periodically reviews the position of each inmate. But some regard the system as one which leaves prisoners in limbo, with little hope and no idea of when they are likely to be released. ' Unless there are exceptional circumstances, it is highly unlikely they will ever be released,' said barrister John Mullick, who represented one of the convicted murderers, Lau Cheong, 29. The appeal was also brought by Lau Wong, 31. The pair were jailed for life for murder in December 1998. They killed Kei Wai-heung, 46, during a knife-point robbery. He died from strangulation after being tied up with a rope around his neck.

Their case was that the murder laws are too sweeping, failing to distinguish between different types of killer. A distraught mercy-killer who agrees to a request from a terminally ill relative to end that person's life is treated the same way as a sadistic serial murderer.

Murder is defined as killing someone while intending to cause them at least really serious harm. It does not distinguish between the person who intended to kill, and the person who did not. 'You label people as murderers when, in fact, they never intended to commit murder,' said Mr Mullick.

He suggested that by sticking with the definition, Hong Kong was lagging behind other parts of the world where a different approach has been adopted, such as dividing cases into first and second degree murder, depending on their seriousness.

During the appeal, it was argued that the SAR definition breaches the Basic Law and Bill of Rights provisions against arbitrary detention. But the judges rejected this. They said if someone inflicts serious harm, even if they do not wish to cause death, the risks involved are severe enough to warrant a murder conviction. 'In our view, there is nothing capricious or unreasonable in classing such conduct as murder as a matter of legal policy,' they said.

The second issue concerned the legal requirement on judges to impose a life sentence on all murderers, except those under 18 at the time of the crime.

This arises from the circumstances in which the death penalty was abolished in Hong Kong.

No prisoner has been executed since 1966 and all death sentences passed between then and 1993, when the penalty was abolished, were commuted to life imprisonment. In 1991, a motion was introduced in Legco calling for the death penalty to be reintroduced. But the motion was amended to provide for abolition of the death penalty instead, and the mandatory life sentence for murder was put in its place.

During the appeal ruled on last week, it was argued the automatic life sentence was unconstitutional.  The court found the 'wide range of moral culpability' separating defendants in murder cases did not mean the automatic life sentence breached constitutional safeguards. 'The fact that a mercy killer can point to there being more heinous killings does not of itself mean that his own sentence was arbitrary and unconstitutional.'

The judges dismissed the argument that the mandatory sentence was cruel, inhuman or degrading and ruled that decisions in other parts of the world did not affect the position in Hong Kong.

Central to the court's decision was the serious nature of the crime. The judges described murder as 'a crime apart'. A tough sentencing policy was necessary in order to deter others from committing similar crimes.

The court also placed importance on the system which reviews the cases of prisoners serving long sentences to decide when they can be released.

The final decision on the time they serve is made by the chief executive, on the recommendation of the Long-Term Prison Sentences Review Board. It includes two judges, a lawyer, a psychiatrist, a psychologist, and a social worker. Convicted murderers first qualify for a review five years into their sentence. Their cases are then considered at least once every two years.

Prisoners are told of the date of the review and are entitled to make written - and in some cases oral - submissions. But those serving mandatory life sentences, unlike other prisoners, are not allowed to see material to be considered prior to the review.  The court called for this to be put right immediately.

The review system came under fire in the appeal. The board has the power to order that, in a particular case, a life sentence be replaced by one of a set length. But figures between 1986 and 2001 show that when this has been done the term put in place has been, on average, 34 years.

Statistics released by the board showed that between June 1997 and June 2000 it heard 1,768 cases, but sat only 15 times. That means at each hearing more than 100 cases were considered, suggesting little time was available for each one. 'It is hardly individual treatment,' said Audrey Eu Yuet-mee, SC, also for Lau Cheong .

Law Yuk-kai, of the Hong Kong Human Rights Monitor, said it was important to have a fair system of review which enabled prisoners to have their cases considered fairly. There was a feeling with the current system that the views of the government on each case were the ones generally accepted.

A spokesman for the Board said members study the cases before each meeting, are familiar with them, and have not complained about having insufficient time. He said prisoners are well informed of the review procedure, which runs smoothly.

Another factor which weighed heavily was the moral issue in deciding how murderers should be treated. This matter was better dealt with by the legislature, the judges said.

With regard to the automatic life sentence for murder, they concluded that 'the legislature's intention was to mark out murder as a uniquely serious offence'.

Judge Arthur Leong Shiu-chung, President of the review board, wrote in this month's Hong Kong Lawyer  that the SAR has a penal system to deal with serious offenders which is consistent with international standard and is more lenient than in many other countries.

But should Legco come to reconsider the way in which murderers are treated, the case ruled on last week will have given them much to consider.

Cliff Buddle edits the Post's opinion pages



Keeping murderers behind bars