A decision on Mahjoub’s application for bail was pending at the time of writing.
Case of Lai Cheong Sing and Family
The use of diplomatic assurances in Canadian asylum cases is another disturbing
development. Assurances have been sought in cases involving persons who do not have
a security profile, but who were unsuccessful in their efforts to seek asylum.
The case of the Lai family illustrates the danger that the use of diplomatic assurances in
terrorism or national security cases poses to a broader pool of people subject to forced
return. Lai Cheong Sing, his wife Tsang Ming Na, and three children were excluded
from refugee status in June 2002 on the ground that there were reasons to believe they
had committed serious non-political offenses, namely bribery and smuggling, in Hong
Kong and China prior to arrival in Canada in 1999.160 In its ruling, the court overlooked
substantial evidence that torture was pervasive in the Chinese criminal justice system and
that persons interrogated in China regarding the Lai family’s activities had been illtreated. It also issued the controversial ruling, now on appeal, that China’s assurances
against torture did not have to be evaluated separately from its assurances against the
death penalty.
The panel that made the decision to exclude the Lais from consideration for full refugee
status did so based in part on assurances from the Chinese authorities that if returned,
the Lais would not face the death penalty or torture; these assurances were assessed
together and amounted to the following:
In accordance with…Article 199 of the Criminal Procedure Law of the
People's Republic of China which stipulates that "death sentences shall
be subject to approval by the Supreme People's Court," the appropriate
criminal court will not sentence him [Lai] to death and even if it does,
the verdict will not be approved by the Supreme People's Court,
therefore, he will not be executed in any case if returned to China.
At the same time, China is a state party to the U.N. Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or
160
Lai v. Minister of Citizenship and Immigration (Lai v. Canada), Federal Court of Canada, IMM-3194-02, 2004
FC 179, February 3, 2004 [online] http://decisions.fct-cf.gc.ca/fct/2004/2004fc179.shtml (retrieved February 26,
2005). The Lais were excluded from refugee status for the commission of serious non-political crimes outside
the country of refuge prior to their admission to Canada.
55
HUMAN RIGHTS WATCH VOL. 17 NO. 4(D)
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