Punishment. According to the provisions of the relevant Chinese laws, during the period of investigation and trial of Lai after his repatriation and, if convicted, during his term of imprisonment, Lai will not be subject to torture and other cruel, inhuman or degrading treatment or punishment.161 In February 2004, the federal court dismissed the Lais application for judicial review of their refugee status determination and certified a set of questions for consideration by the federal court of appeal. The questions included: “When does there need to be an assessment of a foreign state’s assurance to avoid torture of refugee claimants separate from its assessment not to impose the death penalty?”162 The federal court concluded that since there was no persuasive evidence of torture or degrading treatment following return in cases similar to the Lais, the decision not to assess the assurances against torture separately was justified.163 The Lais lawyers, however, argued that some of the persons interrogated by the Chinese authorities about the Lais were ill-treated and coerced into giving false information. They also argued that the Suresh case established that the sole criterion for the need for a separate assessment for assurances against torture is that the state “has engaged in illegal torture or allowed others to do so on its territory in the past.”164 Because of the compelling nature of the evidence directly linked to the Lais and the general evidence that torture was routinely used to extract confessions in Chinese criminal proceedings, the court should have conducted a separate assessment of the Chinese government’s assurances against torture. The Suresh court articulated the operational problems inherent in relying on assurances in torture risk cases: A distinction may be drawn between assurances given by a state that it will not apply the death penalty (through a legal process) and assurances by a state that it will not resort to torture (an illegal process). We would signal the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with 161 Lai v. Canada, February 2004, para. 46. 162 Lai v. Canada, Public Memorandum of Fact and Law of the Appellants, Federal Court of Appeal, IMM-319402, Court No. A-191-04, July 26, 2004, copy on file with Human Rights Watch. 163 Lai v. Canada, February 2004, para. 50. 164 Ibid., para. 25. HUMAN RIGHTS WATCH VOL. 17 NO. 4(D) 56