tim's experiment

The case of Kwok Wai-yin was a tragic one. The wife he had been married to for more than 30 years fell prey to a fatal and painful form of cancer. Eventually, with her consent, Mr Kwok helped her end the struggle by burning charcoal in the bedroom.

Two and a half years of remand in custody ensued before he finally came before a judge for sentencing last week. He then became the first person – and the way things are going he will not be the last – to spend a long time in prison on remand, only to receive a non-custodial sentence.

The judge did say, in sentencing Mr Kwok to probation, that he took into consideration the fact that the defendant had already in effect served two and a half years. Which might have been a reasonable sentence, I suppose, for manslaughter with extenuating circumstances.

Media coverage of this tragedy concentrated, quite understandably, on the mercy killing aspect. Judge Albert Wong solved a difficult problem with dignity and humanity. Other defendants may not be so lucky. We must also wait to see whether Mr Justice Wong’s solution will provoke an appeal from the part of the Department of Justice which mass produces appeals against lenient sentences.

But the delay is also noteworthy. Obviously we cannot know what would have happened if Mr Kwok’s case had come up within a reasonable time, which in many Common Law jurisdictions would be something less than six months.

The despair-inducing thing about this case is that none of the usual excuses – detective work, assembly of evidence, sharing it with defence, need to timetable a long trial – is operable at all. On the same day he helped his wife into the afterlife Mr Kwok walked into a police station and told the officers therein what he had done.

Preparation? The prosecution barely even needed a lawyer. And yet the legal machinery still managed to keep Mr Kwok waiting for two and a half years. A spell in prison this long can ruin a person’s life.

The right to a speedy trial is recognised in all the international human rights instruments. It also features in the Department of Justice’s guidelines for prosecutors. Yet even when the defendant flings himself unresisting into the gaping maw of the legal system it still can’t manage a decently swift process.

No doubt there are excuses – the backlog of riot cases, the epidemic – but these will not wash. If the system is under strain for some reason then there must be priorities. And the first of these should be to resolve the cases of people who are in prison awaiting trial.

Oddly enough Mr Kwok appeared in court on the same day as the speech therapists convicted of publishing seditious children’s books which, according to Judge Kwok Wai-kin, led young readers to “not to trust the administration of justice in Hong Kong.”

We’re supposed to trust the administration of justice in Hong Kong, are we? Also on the same day Judge Kwok Kai-on (as far as I know none of the Kwoks in this piece are related) convicted a 46-year-old woman of rioting (nearly three years ago, normal service) because “a first aider can also be a rioter and cannot rule out the possibility that she participated in the riot.”

Cannot rule out the possibility? Can also be a rioter? Could one of those mysterious “workshops” at which judges are told what is expected of them perhaps be devoted to the implications of this quote from a famous lawyer:

The possibility of guilt is not enough. Suspicion is not enough. Probability is not enough; likelihood is not. A criminal matter is not a matter of balancing probabilities and deciding in favour of a probability. If the accusation is not proved beyond reasonable doubt against the man accused in the dock then by law he is entitled to be acquitted, because that is the way our rules work. It is not a concession to give him the benefit of the doubt. He is entitled by law to a verdict of not guilty.

Trust cannot be enforced. It must be earned.