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Nick Gentle

Appeal justices reserve decision after defence lawyer says it would be best if the sentencing review process is formalised

The Court of First Instance needed to be wary of becoming a de facto legislature when considering a challenge on how mandatory life sentences are reviewed, a judge said yesterday.

Mr Justice Michael Hartmann made the observation on the final day of a judicial review of a decision by the Long Term Prison Sentence Review Board not to reveal to a convicted murderer the minimum amount of time he must spend in prison. He said the issues involved in the case of Tong Yu-lam were so important they were best decided by the Legislative Council.

Tong was handed a mandatory life sentence in 1993 for murdering a woman by wrapping adhesive tape around her mouth and nose and suffocating her. He later burned her body.

Tong was asking the Court of First Instance to declare that the board's decision to  withhold the extent of  the 'punitive part' of his sentence had contravened Article 28 of the Basic Law, which protects people in Hong Kong from arbitrary detention, and several sections of the Bill of Rights.

The mandatory life sentence for murder was adopted after the abolition of the death penalty in 1993.

Mr Justice Hartmann said he and the other judge hearing the review, Andrew Chung On-tak,  needed to watch that they did not stray into territory more suited to the legislature when deciding on this issue.

'Our concern is that we [do not become] involved in the formulation of what we think is the best policy,' Mr Justice Hartmann said.

Earlier, Russell Coleman, for the board, had also argued that  point. The Court of Final Appeal had ruled quite unambiguously on the matter in a similar case, he said. It was not for the court to cross the constitutional divide and delve into matters of public policy, he said.

But Paul Harris, for Tong, said the courts did have jurisdiction, albeit limited.

'The role of the courts is to say, 'The way it is being done now is not permissible',' he said. 'It is for the legislature and the executive to work out the way of changing it.'

Mr Coleman said that asking the court to declare the board had erred in  not telling Tong the minimum length of his sentence was wrong-headed for 'the simple fact that mandatory life sentences do not have a minimum period'.

'It is very much a 'when did you stop beating your wife' type of question in that it presumes there is a minimum term,' he said.

Mr Coleman said there was no basis to the argument that a mandatory life sentence was a form of indeterminate, arbitrary detention because the sentence was finite - it lasted as long as the inmate lived. The review board existed to make sure that mercy was granted to  those prisoners whose circumstances warranted it.

Mr Harris  said that  approach was illogical, as it was  well recognised that few people receiving mandatory life sentences stayed behind bars until death.

'Someone, somewhere is taking a decision about when they should be released, which means they are deciding what should be a fair retributive sentence,' Mr Harris said.

It would be better for all parties if that process were formalised. much as it had been for people serving discretionary life sentences and those serving at the chief executive's pleasure, he said.

The justices reserved decision.



Judges wary of ruling on life terms