Volumen de agua de mar

On 26 June 1991 legislator Kingsley Sit proposed the Member’s motion to the Legislative Council that “in view of the increasing concern caused by the present law

83 South China Morning Post, 17 November 1989, 14 June 1990, 15 June 1990 and 16 June 1990.

84 Ibid, 5 June 1990.

85 The Fight Crime Committee conducted a survey between 8-22 January 1990 to gauge the public opinion on death penalty and the result indicated 70% in support of the death penalty. South China Morning Post’s poll indicated 71% in support of death penalty with 25% against, which indicated an increase from a similar poll in 1986 with 68% in support of death penalty. See South China Morning Post, 5 June 1990 and 5 November 1990.

and order situation, this Council urges the government to resume immediately the carrying out of the death penalty."⁸⁶

Mr Sit’s motion was raised after a gang of five masked robbers raided five goldsmith shops consecutively in a busy street in Kowloon on 9 June 1991. The leader of the group was captured in picture waving an AK 47 assault rifle in the commission of the crime and fled from the scene by firing at the arriving police.⁸⁷ A local poll was conducted at the district where the armed robberies took place and found 84% of the respondents supported death penalty.⁸⁸

It was ironic that the Hong Kong Bill of Rights Ordinance had only become law on 8 June 1991, one day before the shoot out.⁸⁹ The Hong Kong Bill of Rights is mirrored after the International Covenant on Civil and Political Rights (ICCPR) with almost exact wordings being used in the Bill of Rights. Article 6 of the ICCPR which covers the right to life is being adopted in Article 2 of the Bill of Rights Ordinance in Hong Kong without amendment. Though the Article still accepts death penalty for the most serious crimes (S. 2) and should not be imposed on young offenders under eighteen years old or on pregnant women (S. 5), yet it states in S. 6 that “Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.”⁹⁰

In the Legislative Council, legislator Martin Lee tabled an amendment to counter Mr.

Sit’s motion by proposing:

86 Hong Kong Hansard, 26 June 1991: 75.

87 Hong Kong Standard, 10 June 1991.

88 South China Morning Post, 28 June 1991.

89 Wacks, R. (ed.) (1992) op cit., p. 2.

90 Liu, A. (1992) op cit., p. 264.

"That in view of both the need to deter and prevent crime and the importance of Hong Kong maintaining the highest standards of a modern, humane community, this Council urges the Government to strengthen the capability of the police force to fight crime and calls for legislative measures to be introduced into this Council which would abolish the death penalty and replace it with life imprisonment.”⁹¹

It was a heated and emotional debate starting from half-past five in the afternoon till nine minutes to ten in the evening. Arguments of the pro death penalty group stressed that the majority of the Hong Kong people are in support of the death penalty which is also the traditional Chinese belief that murderers should be executed. They believed that only by resuming the death penalty in Hong Kong would the tide of the violent crime be stopped. To abolish the death penalty in Hong Kong would send a wrong signal to the criminals that they could kill without the fear of being sentenced to death, which is most unfair to the victims.

The abolitionists’ arguments were mainly focused on the possibilities of wrongful execution of innocent persons, the unproven deterrent effect of the death penalty and the fear that Hong Kong, after 1997, would resume executing offenders on offences not limiting to murder as practiced in China. Other opinions such as those expressed by the Bar Association felt that the current practice of passing death penalty and then commuted by the Governor had already amount to a de facto abolition. Others felt that life sentence should have adequate deterrent effects for the potential offenders.

91 Hong Kong Hansard, 26 June 1991.

During the course of the debate, it was also revealed that “a total of 243 convicted murderers’ death sentence has been commuted by the Governor in Council since 1966.

Some 28% got a jail sentence of about 20 years or more.”⁹²

Before putting the motion to vote, the Secretary for Security promised that the Administration would consider bringing forward legislation to abolish death penalty if the majority of Members of Council voted in favour of abolition. When the votes were cast, Legislator Martin LEE’s amendment gained the majority support of 24 votes against 12, with another 5 abstentions from the members.

A few days before this Legislative Council’s debate on death sentence, the University of Hong Kong organized an international conference on the Bill of Rights Ordinance in Hong Kong from 19-22 June 1991. The international participants attending the conference petitioned to the legislators by signing a letter stating that “We are people of many countries in Hong Kong to speak at the International Conference on the Bill of Rights. We believe that the death penalty is incompatible with human rights and that its reinstatement would be against the best interests of the people of Hong Kong.”⁹³ The letter was circulated to the Legislative Council members before the meeting and its effect was not known as only Martin Lee had mentioned the petition in his speech. The editor however suggested that it was “one of the rare occasions when an international conference may have played some practical part in local lawmaking by reason of the coincidence of its concerns with proposals for law reform in the local legislature.”⁹⁴

92 Ibid.

93 Commonwealth Law Bulletin , Volume 17 (3), 1991: 1105

94 Ibid, p. 1106.

Governor Wilson when addressing the Legislative Council on the topic of rule of law and human rights on 31 October 1991 stated clearly for the Government “to maintain the confidence of the people of Hong Kong in our future, we must ensure the rule of law and judicial independence now and in the years beyond 1997”. Amongst other actions, to “Amend as soon as possible the law to replace the death sentence with life imprisonment”.⁹⁵ However there was not much progress on this issue up till his departure as Governor of Hong Kong in June 1992.

Chris Patten arrived in Hong Kong on 9 July 1992 as the last Governor representing the British Government’s interest over this colony before the handover. When addressing the Legislative Council the first time on 7 October 1992, he had affirmed his plan to abolish the capital punishment as part of his law, order and justice initiates by saying:

“Any society based on the rule of law must ensure that its laws reflect the realities of contemporary life and thought. I think it is wrong in principle to leave laws on the statute books which are out of date, which we do not use and which we have no intention of using. I am referring here to the law on capital punishment.

On 26 June last year, the Council voted for a motion in favour of the repeal of capital punishment. In the debate, many Members recognised that laws which are not used or out of date should be repealed. We have therefore prepared draft legislation to replace the penalty of capital punishment with life imprisonment. This amending legislation will be presented to the Council during this new session.”⁹⁶

95 Hong Kong Hansard, 31 October 1991: 108.

96 Hong Kong Hansard, 7 October 1992: 33-34.

The Administration, based on Martin Lee’s amendment, prepared the Crimes (Amendment) (No. 3) Bill 1992 and tabled it for the First and Second Reading at the Legislative Council on 11 November 1992.⁹⁷

The Bill proposed to abolish the death sentence currently being the mandatory penalty for murder, treason and piracy with violence and to be replaced by life imprisonment.

The power of the Governor to impose death penalty under the Emergency Regulations would be replaced by life imprisonment as the maximum sentence. The Bill also proposed the trial judge to indicate in a written report the special considerations or mitigating circumstances and the recommended minimum sentence to be served if a life sentence were to be handed down.

The sentence reviewing mechanism was also proposed for all life sentences to be reviewed by the Board of Review initially after five years and subsequently every two years unless the Governor directs that a case should be reviewed earlier after considering the trial judge’s report. As for the 32 condemned prisoners under the sentence of death, it was proposed that their death sentences were to be commuted to life imprisonment once the Bill becomes law.

A Committee was set up by the Legislative Council to study the Bill in detail and representations were received from the Bar Association and the Law Society, both supporting the abolition but the Bar Association suggested to limit mandatory life sentence to murder cases only whilst the Law Society proposed life imprisonment should only be used as the maximum sentence. The Committee also received

97 Hong Kong Hansard, 11 November 1992: 641-2.

representation from the Hong Kong Citizens Alliance who opposed any move in abolishing capital punishment.⁹⁸

Four meetings were held by the Bills Committee including meeting with the Administration. The Committee proposed and was eventually agreed by the Administration that the penalty for treason and piracy with violence should be changed to discretionary life sentence as these are offences of a category entirely different from murder and therefore not appropriate for the mandatory life sentences.

It was also agreed that the existing review system should cover both the mandatory life sentence cases together with all other long sentence cases. The Bills Committee also felt strongly for the formalization of the Board of Review of Long Term Prison Sentences as it was basically an administrative tool for the government without legislative backing. The Administration agreed on the need for change and undertook to introduce a separate Bill in the 1993-94 Legislative Session.⁹⁹

When the Second Reading of the Crimes (Amendment) (No. 3) Bill was resumed on 21 April 1993, the Chairman of the Bills Committee presented the motion and again there were Legislators voicing objections to the abolition of capital punishment in Hong Kong. Nevertheless the Bills Committee’s motion was supported by 40 votes against 9 votes opposing the motion.¹⁰⁰ With the blessing of the Legislative Council, the death penalty in Hong Kong was formally removed from the laws of Hong Kong under the Crimes (Amendment) Ordinance 1993 which came into force on 23 April 1993.

98 Ibid, 21 April 1993: 2935.

99 Ibid, pp. 2935-6.

100 Ibid, p. 2942.