Legal experts slam magistrate's decision in Lisa Kuo case
Legal experts say magistrate who will try three others over building of ‘underground palace’ should also decide sentence of Henry Tang’s wife
A magistrate erred in handing over to a colleague the sentencing of the wife of former chief secretary Henry Tang Ying-yen for building illegal structures, legal professionals say.
Lisa Kuo Yu-chin's sentencing should also be adjourned until after the trial of the case's three other defendants, to avoid a situation in which she was sentenced not based on the whole truth, legal expert Eric Cheung Tat-ming said.
Kuo is due to be sentenced at the end of this month, whereas the trio's trial will not take place until November.
The trial might shed light on Kuo's role and knowledge throughout the incident, a factor a sentencing judge should take into account, he said.
"A critical point in this case is Mrs Tang's knowledge. Evidence to be revealed in the trial [of the trio] will help [the magistrate] establish her knowledge," said Cheung, principal law lecturer at the University of Hong Kong.
"Evidence from the three other defendants might, for example, suggest they had persuaded Mrs Tang not to build the illegal structures but that she did not listen to them. This is the information … a magistrate should know before he passes sentence."
Kuo pleaded guilty on Thursday to one of two counts over the building of a basement at the couple's Kowloon Tong villa.
Acting chief magistrate Clement Lee Hing-nin adjourned her sentencing to July 30, to be handled by another magistrate. He did so because he would be trying architect Henry Ho Chung-yi, structural engineer Wong Pak-am and contractor Hien Lee Engineering on November 27 after they each pleaded not guilty to two summonses.
But both Cheung and senior barrister Ronny Tong Ka-wah said Lee should also handle Kuo's sentencing. His move not to do so risked the possibility of inconsistent verdicts, Cheung warned.
Calling it a "flawed procedure", Cheung said the decision was out of line with a case precedent set by the High Court. It was most proper for the same magistrate to try and to sentence all the defendants because the person would then be familiar with all the facts, he said.
Cheung pointed to a recent case in which four people prosecuted over the same incident received inconsistent verdicts passed by different magistrates. In that case, three were convicted and the fourth was acquitted.
Tong agreed there was no reason for the trio's trial and Kuo's sentencing to be handled by different magistrates. But since a plea bargain was involved in Kuo's case, a magistrate could pass a sentence only according to facts agreed by her and the prosecution, he said. Earlier, the court heard that the prosecution planned to withdraw the second count if she admitted the facts of the first summons.
"The sentencing magistrate cannot rely on evidence revealed in the trial of other defendants because that will be in breach of the spirit of an agreement," Tong said.
The judiciary said: "Sentencing is a matter for the court. The judiciary will not comment on individual cases." The Department of Justice said: "This case has proceeded normally and is in accordance with the prosecution policy and practice."