Ho Chio Meng
The decision by the Court of Final Appeal (TUI) that ruled against a petition by the defense of the former Prosecutor-General Ho Chio Meng is “worrying,” say lawyers Jorge Menezes and Jorge Neto Valente, who is president of the Macau Lawyers Association.
Ho Chio Meng had previously aimed to have the judge Sam Hou Fai recused from the trial over his public comments regarding the case.
Questioned by the Times on the topic, Valente expressed concerns about the way the case was being conducted, and highlighted the decision of another judge, Viriato de Lima. In March this year, de Lima had declared a self-impediment from the decision on the “habeas corpus” petition in accordance with article 29 of the Macau Criminal Code, since he had presided over preliminary hearings.
“According to the information I have and as I was informed, looks like the judge Viriato de Lima took part in the discussion and production of this decision,” Valente said to the Times.
“Even if there isn’t an outright ban [in] the law, I think it would be of elementary common sense that he wouldn’t take part [in] this decision. I see all this with a lot of concern. I think there weren’t enough guarantees given to the defense and I think this [case] is not giving a good image [of the judiciary system] and I’m not alone in these concerns […] The way this trial is being started fails to give the court its prestige.”
Elaborating on the case and the reasons behind it, Menezes said, “The law provides that a judge can be refused to act in the proceedings where there is [the] risk of being considered suspicious, on the basis of a serious and significant reason that is conducive to generate distrust about the judge’s impartiality.”
On the defense’s request to TUI, Menezes thinks that “Ho Chio Meng’s lawyer seems to have argued that judge Sam Hou Fai expressed the view that there were strong indications to believe the defendant committed the offences under investigation […] This doesn’t seem accurate regarding the ‘habeas corpus’ appeal, when the judges didn’t express that view. They mentioned only that this was the understanding of the judge who ordered the defendant to remand in custody. The ‘habeas corpus’ didn’t discuss guilt or the facts of the case; it discussed other matters of law.”
Regardless, Menezes also agrees that this is not the best starting point for a case that has promised to be complex from the very start. It is likely to be a case without a consensus easily reached.
In Menezes’ opinion, the defense scored some points when they argued that “Sam Hou Fai expressed this view [of guilt] in deciding an application regarding access to Ho Chio Meng’s tax returns.”
“If this is true, the defendant will have his life decided by a judge who has already expressed the view that there are strong reasons to believe the defendant is guilty,” Menezes said. He said the situation was “not helpful” but added that it did not mean that the judge would be incapable of changing his mind.
The legal question is whether the reasons invoked are serious and significant enough to generate distrust about the judge’s impartiality.
“There is a relevant level of discretion here, as you can imagine, and impartiality is a matter of degree. So it is not easy to give a black and white legal answer,” Menezes said.
“I would have advised the judge not to sit in the panel. We want both the defendant and the community to unequivocally trust that he will have a fair trial. And we want people to be trialed by judges who do not walk into the courtroom with a particular view of the case or under a particular mindset.”
“It is a well-known aphorism that not only must justice be done, it must be seen to be done. It is the role of those engaged with justice to make an effort [to show] that justice is being served – that is perceived to be served – to build trust in the system,” he finished.
After the TUI’s decision, the first session of the trial has been rescheduled for tomorrow morning.
Lawyers Association reelects Neto Valente to presidency
The elections for the presidency as well as other bodies of the Macau Lawyers Association (AAM) were well attended, newly re-elected president Jorge Neto Valente told the Times.
The election took place on Tuesday (December 6) at the Association headquarters and benefited from “very significant participation, although there was only a single-list run for the AAM.”
Valente said “around 70 percent of the lawyers” voted and that “with a few exceptions, they voted on the list presented.”
Valente, who has helmed the Association for several terms, will resume the main role on the Board of Directors for another two-year period. RM
Sam Hou Fai
Neto Valente
Jorge Menezes
No Comments