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  • Jul 31, 2014
  • Updated: 7:39am
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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

PUBLISHED : Saturday, 13 July, 2013, 12:00am
UPDATED : Saturday, 13 July, 2013, 6:19am

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.

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
Legal expert Eric Cheung Tat-ming

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."

 

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captam
Writing in “Introduction to Crime, Law and Justice in Hong Kong”, law Professor Simon N.M Young states there are (only) four benefits derived from plea bargaining
1. Reduces the overall financial costs of criminal prosecution.
2. Improves administrative efficiency.
3. Enables the prosecution to divert more time & resources to other cases of greater importance
4. Enables the prosecution to secure a measure of justice in cases where evidence is weak and conviction uncertain.
Since , as a layman, I am unable to identify any of the above supposed “benefits” being derived in this particular case, I am forced to ponder whether Professor Young should have perhaps included a fifth benefit” in his list:
5. It allows those well-connected to get off almost scot-free.
mdap
A slap over the wrist for Lisa so Henry can walk away completely exonerated; of course they KNEW it was illegal; but as Henry, not Lisa, considers himself above the law the outcome of this case is predetermined; one can imagine Henry has been calling quite a few favors; but ultimately it is Lisa who will be tarnished for sake of her children - Henry is a mistake she realised long ago - fortunately it is one Hong Kong has been saved from!
johnyuan
Funny I have never heard New Yorkers trumpeting New York City has rule of law. It is a city of 8 million residents plus few hundred thousands of commuters from suburs and tourists from other part of US and all over the world. Fortune 500 companies most likely set office in that city. Yet, the city runs orderly. It also seems majority of New Yorkers live within law except for those bankers, investment bankers and Wall Street folks. Don't know what mafias do nowadays? Practice speaks louder when comes to real rule of law for a place.
HK-Lover
Do not make the people of Hong Kong loosing their trust in HK's rule of law with inconsistent proceedings and rulings.
The trial of the other 3 may either clear Henry Tang or, probably more likely, prove his involvement and guilt in the whole matter.
For the sake of justice, Kuo's trial should be postponed and all cases involving the basement to be heard at the same time. And it should be investigated why the judiciary wanted to handle the cases separately in the first place !
Byebye
Is it not right to guess why Mr and Mrs Tang were all smiling, and were photographed happily walking into the court , that they already knew the outcome of the case?
dynamco
Ridiculous to sentence her first when there was obviously ample evidence to prosecute to the hilt in the public interest & when the subsequent PNG trials of the accomplices might reveal salient incriminating evidence against her and others. Is there no prima facie conspiracy to commit a crime shown here? Why do they need a plea bargain? the facts are clear - the basement was illegal & someone knowingly paid to have it built & defrauded the Rating & Valuation dept so what level of investigation was carried out ?
What if one of the defendants puts his hands up and says, 'H told us to do this when we did the initial piling, here's the Autocad file dated xx, here's the interior design file dated xx, so it's quite clear the basement cheat palace was intended from day 1, here are copies of the payment cheques signed by xx dated xx; everything would be ok H said, I am the Govt, then when it went belly up H said he would get his wife to take the rap & we must clam up.'
Anyone heard of subornation?
Meanwhile Lisa still has that Joker smile that a certain geomancer had until recently.
If they allow this sentencing farce to proceed by another magistrate without the same considering evidence in the other trials first it's another nail in the so-called HKG rule of law. Justice needs to be seen to be done.
Nemo est supra legis
Book 'em Danno!
maecheung
Plea Bargaining! I love it! She may be turned into a "prosecutor's witness" and spared any penalty. Isn't this how the 'system' works? The rich and powerful gets away free while the little guys bear the full force of the law.
chaz_hen
Well that's the way it usually works in jurisdictions that always proudly tout their system of "rule of law".
daily
Something fishy is happening under our noses.......Tang and his wife and the corrupted HK government are trying to shield her from having to spend any time in the slammer................she deserves to spend time there just like anyone else who has broken the law.............
The HK government is one of the most corrupted and non-transparent one I have ever seen.
delboy
Although I have a lot of sympathy with Lisa Kuo's predicament, everybody should be treated equally in the eyes of the law. As such I agree totally with the concerns raised in this article: First, Lisa Kuo's sentencing should be made after the trials of the consultants and contractor since there may be disclosures made in the trials which would affect sentencing. Second, one magistrate should handle both Lisa Kuo's sentencing and the trials since having two magistrates increases the chance of inconsistency in sentencing. It seems to me that the crux of the matter is whose responsibility is it to apply the Buildings Department for a basement to be built? Is it the owner, the consultant or the contractor? Logic would suggest that it is the owner's responsibility unless there is a clause in the consultants' or contractor's contract that states otherwise. Surely the owner must be aware that he/she is breaking the law by not applying to the Buildings Department, hence I was surprised that the prosecution dropped the second charge of 'knowingly'. I would suggest that handling the whole case this way will result in Lisa Kuo only receiving a fine and not a custodial sentence. Although I personally would like to see this outcome I feel the process in which this judgment will be reached stinks to high heaven!

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