Lawyer Leong Weng Pun is representing Ho Chio Meng
The Court of Final Appeal (TUI) has rejected a habeas corpus claim (a request to determine if a person’s imprisonment or detention is lawful) by former Public Prosecutor General, Ho Chio Meng.
A collective of judges of the region’s top court, presided over by Song Man Lei and assisted by Sam Hou Fai and Lai Kin Hong, met yesterday afternoon to analyze Ho’s request. If accepted, Ho would be granted immediate release from prison.
TUI’s dismissal suggests that habeas corpus may not apply to this case, and that Ho’s defense would have done better to appeal against the preventive custody measures.
TUI said its measures were justified based on Ho Chio Meng’s “risk of escape,” stating also that “other measures were not considered to be sufficient,” and that the preventive custody measures were taken after “strong evidence” against him was presented.
According to several sources contacted by the Times, the defense – led by lawyer Leong Weng Pun – based its request on Article 33 of Law 10/1999 (Statutes of Judiciary Magistrates), which states that magistrates cannot be arrested or subjected to preventive custody before being formally accused or having the day of their hearing appointed. Exceptions can only be made in cases where the accused magistrates are arrested “in blazing offence” for crimes punishable by a maximum prison sentence of more than three years.
TUI’s decision yesterday also addressed the topic of Article 33 of Law 10/1999, stating that, “since February of 2015, the suspect was appointed as the coordinator of the Committee on Criminal and Legal Studies, ceasing to be a magistrate.” This condition raises doubts for Ho’s defense, who believes that the former Prosecutor General retains his position as a magistrate.
After the court hearing at TUI, Leong refrained from commenting on the case, saying, “I still do not have the verdict, so I need the verdict first [in order] to read it and study it. My team and I need to study it first.”
Asked for comment by the Times, lawyer Jorge Menezes explained that “contrary to the civil law, it is not appropriate for criminal law to be open to interpretation” because it is subject to more restrictive rules. In this sense, he thinks that TUI’s preventive measures would have been carefully analyzed by the magistrates. “I’m certain that they all know well their own statutes,” he said.
The lawyer also thinks that habeas corpus might not be justified in this particular case, since “there are only three reasons to lodge that kind of request: incompetence from the authority that decided the arrest; violation of the legal deadlines for the application of these measures; and because the arrest had been made based on facts that the law does not allow to result in the application of preventive custody, and none of these reasons are relevant here.”
Menezes added, “It is precisely TUI’s implementation of the preventive custody measures that creates a problem (already seen before during the case of former Secretary Ao Man Long). After TUI there is no hierarchically superior court to appeal to. As a result, all appeals will be analyzed by the very same people that made the decision in the first place.” In his opinion, the situation “leaves people in this position with […] diminished rights.”
Since the Ao Man Long case, many studies and publications have addressed the supposed flaws in a legal system that does not allow “effective appeal” for another instance.
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