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HK's 'indeterminate sentences' are torture, cruel and inhumane treatment or punishment


Mario de los Reyes is one of 264 prisoners in HK currently on a "indeterminate sentence" - which means there is no set date for their release!

In the violent death of Eduardo Vera Cruz after 7pm on Feb. 18, 1993 in the dark on a Sai Kung street knife wielder "Marlon" managed to escape from HK and has never being caught. Mario was convicted of murder by "joint enterprise." Under a joint-enterprise murder or manslaughter charge, two or more people engaged in a crime together — even if they didn’t plan to kill  — can be culpable for the actions of accomplices, if the outcome was something that, reasonably, could have been foreseen.

In 2016, the Supreme Court of the United Kingdom, in the landmark decision of Jogee, reversed previous case law on joint enterprise, which itself had been based largely on a Hong Kong court decision from 1985. They ruled it was wrong to treat "foresight" as a sufficient test to convict someone of murder. Hong Kong’s Final Court of Appeal, however, ruled the UK decision should not be adopted in HK.


The British in HK had a sentence of "serving at Her Majesty's Pleasure" - however this has become "problematic" since HK reverted back to China post 1997 handover in that Her Majesty and the UK's democracy and rule OF law has been replaced by the rule BY law of the Chinese Communist Party's (CCP), National Peoples Congress (NPC) and HK's Chief Executive Carrie Lam.

While life in prison implies a definite, albeit long, jail term in some countries, those serving indeterminate sentences in Hong Kong have no fixed date of release.


Their fate, instead, rests in the hands of "Long-term Prison Sentences Review Board", which makes recommendations to the HK’s Chief Executive. The Board’s decision-making process has been criticized as opaque and harsh by prisoners’ rights advocates, with inmates often legally unrepresented and rarely given the chance to present their case in person.


Outcomes, usually, are negative.


Of 221 indeterminate sentences reviewed by the Board in the past two years, 21 were recommended for conversion to a finite term. The board also advises on sentence reductions for terms of longer than 10 years; it reviewed 510 in the past two years & reduced just 6 (six) !


HK's rule OF law ended on 1 July 2020 under CCP's National Security Law (NSL) - HK is now using arbitrary rule BY law. Something urgently needs to be done to resolve the issue of indeterminate sentences!


This amounts to "torture, cruel & inhumane treatment or punishment" under UN Convention Against Torture, Cruel & Unhumane Treatment or Punishment (CAT) which is a HK obligation!



Nancy Kissel dealt setback in bid for early release

RTHK 22 September 2020


The American woman serving a life sentence for the murder of her husband in 2003 in a case that shocked Hong Kong has failed in her latest attempt to have her prison term reduced.


The Court of Appeal on Tuesday refused to grant leave for Nancy Kissel, now 56, to take the case to the Court of Final Appeal over a lower court's decision to throw out her request for a judicial review.


Kissel drugged her husband, Robert, with a sedative-laced milkshake and bludgeoned him to death with a lead ornament at their luxury flat in Tai Tam.


She was convicted of murder in 2005, but the verdict was later quashed by the Court of Final Appeal. She was found guilty again in a retrial.


She later sought to have the Long-term Prison Sentences Review Board convert her sentence to a definite term, but was turned down in 2016, prompting her to seek a judicial review of that decision. But that legal challenge was twice dismissed by different courts.


Kissel had argued that the board should have at least told her what it believed was the minimum sentence she should serve for the murder conviction "as a matter of fairness and natural justice".


She said how the board currently functions is in breach of the Basic Law and the Bill of Rights, adding the top court should hear her case because it is of "great general or public importance" and would affect many others serving indeterminate or long jail terms.


The Court of Appeal said the larger part of her case is not arguable, rejecting her bid to take the case to the Court of Final Appeal.


But the appeal court said Kissel still could make an application directly to the city's highest court to hear her case, on the grounds relating to the constitutionality of the review board's functions.



References:

Coconuts 4 January 2019 'On the Inside Looking Out: Doing life in HK’s maximum security prison'



Nancy Kissel incarcerated indefinitely in HK

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