Crime and punishment

August 23, 2017 16:21
A protester dressed as a judge and holding a mask of Chinese President Xi Jinping stands outside the Court of Final Appeal during a protest against the jailing of pro-democracy activists on Sunday.  Photo: AFP

When I was a Recorder of the Crown Court of England and Wales, I regarded sentencing as a minefield and the most complex of my duties, in much the same way, I believe, as many judges did and continue to do.

Over the years, sentencing policy has accrued more and more rules which, like barnacles on the hull of a sunken vessel, while obscuring the original outline also risk damaging the reputation of the sentencer.

Whether it was luck or judgment, I was never appealed.

Successive legislative bodies, sensitive to public perceptions – some might argue hypersensitive – have hamstrung sentencers, both magistrates and judges, whittling away at a vital element in a civilized system of criminal justice, that of judicial discretion.

At the end of the day, the sentencer may find him or herself vilified for undue savagery or overdue leniency.

And though the criterion is to mete out justice, public perceptions of justice are subjective and fickle.

The core elements of a sentence are punishment, deterrence and rehabilitation but getting the balance just right between these elements demands a high level of skill and, may I say, the exercise of mature judgment based upon experience and tempered with humanity.

The statutes prescribe the weapons in the sentencers’ armory according to the crime.

The unimaginative or intellectually challenged sentencer will play safe by adopting a box-ticking technique, adhering religiously to the prescribed penalties with little if any regard to individual circumstances, the very opposite of sound sentencing.

The sentences imposed by the Hong Kong Court of Appeal on the three people convicted of unlawful assembly have ignited a furor of outrage against both the Hong Kong government and the Court of Appeal, premised on both the review and the sentences being allegedly politically motivated.

Much of this criticism has come from jurisdictions outside Hong Kong and, since the judgment was written in Chinese, I suspect that much of the criticism is not as informed as it ought to be.

It is critically important to distinguish between the unarguably political motivation of the Hong Kong Secretary for Justice who initiated the review of the Magistrates’ Court sentences and the apolitical role of the Court of Appeal charged with the responsibility of the review.

Hong Kong’s Director of Public Prosecutions is legally empowered to seek a judicial review of any criminal sentence that he considers unduly lenient.

In the UK that power was only introduced in 1988 and is subject to strict limitations. It is restricted to indictable offenses and cannot be exercised on sentences passed in a Magistrates Court.

The governing guideline laid down by Lord Lane CJ in 1989 was that:

There must have been some error of principle in the judge's sentence, such that, in the absence of the sentence being altered by the Court, public confidence would be damaged. The court should only grant leave in exceptional circumstances, and not in borderline cases…

Would public confidence in Hong Kong’s criminal justice system have been damaged if the Secretary for Justice had not applied for harsher sentences than those passed originally?

When the UK’s DPP considers an application for review of a sentence, he must also factor in the “Double Jeopardy” rule because such a review involves someone being sentenced twice for the same offense.

The sentences of community service had been completed and the period of suspension of imprisonment was mostly expired, thus the Double Jeopardy rule was fully engaged. The Court of Appeal allowed one month’s discount for this.

Inherent in any civil disobedience is the risk of suffering criminal sanctions for blatant flouting of the law. To that extent, we have to acknowledge that Nathan Law, Joshua Wong and Alex Chow accepted this risk, perhaps even courted it in the belief that it would focus attention on the issues that they promote.

The magistrate who heard their case considered every aspect of the offense and, as she was entitled to do, took into consideration in mitigation of the offense that their motivation was declared to be in the pursuit of a higher quality of democratic society than that which obtains in Hong Kong.

It was, she recognized, altruistic albeit unlawful.

The decision to seek a review of the sentences was sought during the reign of CY Leung, a chief executive with a penchant for confrontation with civil society and a primary loyalty to Beijing as distinct from Hong Kong.

The common law offense of "unlawful assembly" was abolished in England in 1986. In place of this nebulous crime, specific offenses were designated to clearly define the characteristics of unlawful behavior.

Hong Kong which, regrettably, does have a proclivity for both offenses and procedures that favor the prosecution over the defense, retained the offense.

All ill-defined offenses by virtue of their very vagueness strike at the very heart of a civilized system of justice because of their subjective character. Consider, for a moment, the classic mainland Chinese offense of "picking quarrels and causing trouble"; how much more cloud-cuckoo-land could this be?

The Court of Appeal passed sentences well within its legitimate powers. The allegation of political bias by the Court is, I suggest, misdirected. The decision to seek a review was a political decision taken by the government’s senior legal officer.

If the case goes to the Court of Final Appeal, any error by the Court of Appeal in the application of legal principles or manifest injustice will be duly considered.

Too many people forget that the appeals system is in place precisely because of the requirement for machinery to remedy defects in judicial decisions.

Every experienced barrister knows only too well that the outcome of a case tried by judges depends on the individual character of those judges. Contrary to an idealized and unrealistic public perception and no matter how much we would wish it, all judges are not paragons of judicial virtue.

No matter how hard they try to be entirely objective – and many do – human nature being what it is, judges’ predilections and idiosyncrasies will out and it is "pot luck" whether a case is heard by one of those less susceptible to such human foibles.

Just because one disagrees with the verdict or the sentence does not mean that the judge’s motivation is flawed.

Hong Kong has been substantially well served to date by its apolitical judiciary. Indeed, at its best, the Hong Kong judiciary is the beacon of a common law liberal democracy.

Once we begin to criticize what we perceive to be overly harsh or unduly lenient sentencing as politically colored, no judge will ever be safe and the integrity of the system will be fatally undermined.

Speculation about judicial motives is dangerous. Poor judgment is not the same thing as a politically motivated judgment.

Criticism of the Secretary for Justice’s political decision which is perceived as persecution rather than prosecution is legitimate, as is criticism of the retention of this dangerously vague offense of unlawful assembly and the relatively unfettered entitlement of the government to seek a review of a sentence with which it disagrees.

These are the matters that should come under the laser-like attention of an informed public.

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Queen's Counsel