The two Hong Kong businessmen at the centre of a HK$20 million bribery trial in Macau will not be thrown into jail as long as they stay away from the former Portuguese enclave, legal scholars said ahead of the ruling yesterday.
The "loophole" lies in the absence of an extradition treaty between Hong Kong and Macau that works in favour of Joseph Lau Luen-hung and Steven Lo Kit-sing, according to two academics at the University of Macau's law faculty.
"The sentence cannot be executed" provided they do not enter Macau, associate professor Iau Teng-pio said, but added: "If the two cities sign an agreement in the future, they can still be sent to prison in Macau."
Iau's colleague, Professor Lok Wai-kin, noted that "the two cities have been in talks about an extradition pact for five years, but still it has not been signed yet".
"Lawyers [for Lau and Lo] will most probably ask them not to visit Macau on the day of the sentencing," Lok said. "It is definitely a loophole. Such an agreement needs to be signed as soon as possible."
While the legal flaw exists, it is not mandatory for Hongkongers to appear at criminal trials in Macau and vice versa. Defendants convicted in the other city need not serve their sentences unless they visit that place.
Macau prosecutors charged Lau and Lo in May 2012 with bribery and money laundering, over a HK$20 million bribe they offered to disgraced former public works minister Ao Man-long to secure land for a luxury property project near Macau airport.
Even before Ao was jailed for 29 years that month, his wife Chan Meng-ieng had become one of the most prominent examples of avoiding jail in the absence of an extradition pact. Chan was slapped with a 23-year prison term on money-laundering charges in 2008, but she has been in exile since.
In January last year, Secretary for Justice Rimsky Yuen Kwok-keung said the extradition of criminals to and from Macau was an area of concern and pledged to follow up on it. Lok believes the different legal systems between the two cities is a reason for the delay - Hong Kong practises common law while Macau follows continental law.
The duo would also have to avoid countries that had extradition treaties with Macau, Lok said. Macau has signed such pacts only with Portugal and the former Portuguese colonies of Timor Leste and Cape Verde.
Lok also noted that Lau had been absent from all the hearings throughout the 18-month trial, while Lo had attended almost every session. "This shows a problem with [Lau's] attitude. The judge will definitely give him a heavier sentence," he said.
New Democratic Macau Association lawmaker Au Kam-san also called for extradition pacts to stop people from taking advantage of the current omission.