Sentencing reviews 'in breach of Basic Law'
The system of review for mandatory life sentences in Hong Kong violates the Basic Law and the Bill of Rights, a court heard yesterday.
The Court of First Instance is hearing a judicial review into the case of Tong Yu-lam, who was sentenced in 1993 to life in prison for murder.
Tong alleges that the Long Term Prison Sentence Review Board violated his rights by refusing to disclose to him the minimum amount of time he should spend behind bars and by having a policy of not allowing oral submissions.
Paul Harris, counsel for Tong, said the board violated Article 28 of the Basic Law and sections of the Bill of Rights if the prisoner was not informed of the minimum term. Article 28, and Article 5 of the Bill of Rights, protect people in Hong Kong from arbitrary detention.
Tong was sentenced in September 1993 after a jury found him guilty of murdering Wong Hau-ching, 34. It found Tong, a gambler who was being pressed for money by a loanshark after a disastrous few hours in Macau, had forced Wong to give him money when he returned to the Tai Kok Tsui flat their families shared.
He had then wound adhesive tape round her mouth and nose, suffocating her before moving the body to a nearby building and setting fire to it.
The Long Term Prison Sentence Review Board must consider each individual case at regular intervals to see if the purposes of incarceration, namely punishment and protecting the public, have been satisfied. In the case of mandatory life sentences, those reviews begin five years after the start of the sentence and are repeated at least every two years after that.
It must inform the prisoner that a review is due and the prisoner can make written submissions. The board also has discretion to hear oral testimony. Up to October 2004 it had never done so.
Mr Harris said that while the right to an oral hearing was protected by the Bill of Rights, Tong chose not to exercise it because he knew the board would not allow it. That in itself was a procedural defect which begged correction, he said.
Not only that, but after Tong's most recent review, in November 2004 - as well as in 2000 and 2003 - the board told him there would be no change to his sentence because his crime was serious and he had not served the punitive section. It did not elaborate as to what that punitive part was. This was unfair as the prisoner was left 'in a state of total uncertainty about his situation', Mr Harris said.
'It is an unfair punishment for the board to formulate its decision in terms of a punitive part ... and inform [him] that his sentence incorporates a punitive part - which by definition must be shorter than life imprisonment - but not tell him what that punitive part is.'
Mr Harris said that as the review process was part of the sentencing procedure, international human rights law dictated it must be fair. Failing to tell inmates what the punitive part of their sentences amounted to was therefore a breach of the fair-trial provisions built into the Basic Law.
The hearing continues before Justice Michael Hartmann today.