A HK sentencing council would ensure justice

Perception is reality. The recent controversy over HKSAR vs Wong Chi Fung and Another (CACC 101/2021) focuses on the sentencing disparity arising from judicial discretion, which is perceived to have been arbitrarily exercised by judges who have allegedly passed sentences in accordance with personal prejudice and predilection. 

Though this perception is divorced from reality, it has greatly undermined public confidence in our judicial system. If there are relevant sentencing guidelines issued by the Court of Appeal, greater consistency in sentencing will be achieved because judicial discretion must be exercised judicially in accordance with the staged-process method adopted by the sentencing councils of major common law jurisdictions.

The staged-process method provides the methodological framework for the operation of the sentencing council. The most basic feature of the staged-process method is that judges decide sentences based on structural, sequential reasoning. Usually this requires a judge to first ascertain the objective severity of the offense, to arrive at a presumptive sentence (or range of sentences) before further adjusting to take into account other considerations, in particular offender-specific ones, and to arrive at the final sentence to be passed. In contrast to the staged-process method, the instinctive-synthesis method allows sentencing to be made on a highly individualized basis.

In HKSAR vs Wong Chi Fung, one of the grounds of appeal against the sentence is the disparity in sentence between the sentences passed by the trial judge on Joshua Wong Chi-fung and Leung Hoi-ching and the seemingly lenient sentences of other defendants passed by Judge Amanda Woodcock. Wong, Leung and other co-defendants took part in an unauthorized assembly in Victoria Park in June 2020. At the time of the offense, Leung was a district councilor.

The Court of Appeal makes it clear that it is not necessarily wrong in principle to impose a four-month imprisonment on Leung Hoi-ching and suspended sentences on other co-defendants (D8, D12 and D14) if there are substantial differences in their culpability or in the mitigating circumstances, or both. It’s worth noting that the starting point of six months adopted for Leung Hoi-ching is the same as that for D8, D12 and D14.

What matters above all else is the question as to whether a right-thinking member of the public with full knowledge of the relevant facts and circumstances when learning of the sentence would consider that something had gone wrong: HKSAR vs Hui Sze Ping, CACC 426/2002. Without full knowledge of the relevant facts and circumstances, some people merely look at the disparity in sentences through the distorting lens of their political affiliation and cling naively to the belief that the sentencing system is unjust. To complicate matters further, the legal representatives of Wong and Leung still relied on the disparity in sentencing as a ground of appeal, though they should have been very familiar with the relevant facts and circumstances of the case.

Since the introduction of the Sentencing Council, the Singapore appellate courts have been issuing sentencing guideline judgments with increased frequency, comprehensiveness and sophistication in analysis and methodology

With comprehensive guidance on a variety of offenses, sentencing councils in other common law jurisdictions appear to succeed in achieving a heightened level of sentencing consistency and clarity. Laymen, who do not have full knowledge of the relevant facts and circumstances of the case, may be impressed by the use of the staged-process method by sentencing councils in these jurisdictions in achieving a higher level of sentencing consistency. This method can impose more reasonable constraints on a sentencing judge’s discretion.

As mentioned earlier in this column, the courts in Hong Kong have a blend of features of staged-process and instinctive-synthesis methods. The Court of Appeal often issues sentencing guidelines or tariffs for lower courts. We are familiar with the sentencing guidelines on drug trafficking. But this approach is piecemeal and dependent on appeals being filed. If there is no appeal, the passive Court of Appeal will not get an opportunity to provide guidance on a particular type of offense.

To dispel the cloud of uncertainty over the inflexible guideline-issuing mechanism, we believe that a sentencing council offers a practical way out of the impasse. Under the existing system, only parties to the case can appeal, and the parties may not appeal against a sentencing decision for a variety of reasons. Where there is no appeal, the Court of Appeal cannot make any necessary change to unclear or outdated guidelines previously laid down. Nor can it provide new guidelines freely on its own initiative. Bringing flexibility to the guideline-issuing mechanism is the first advantage of establishing a sentencing council.

Second, a sentencing council deserves a round of applause by providing a wider field of expertise and experience to share their views. Third, it can perform an advisory role that is not fettered by the appellate process, and it is not limited by what has been argued by the parties. Finally, it could be said that whatever suggestions or conclusions that emanate from such a body are more likely to be balanced.

Before 2013, Singapore relied passively on guideline judgments to foster sentencing consistency. In a dramatic move, Singapore established a Sentencing Council in March 2013 to actively assist the Magistrates’ Courts and District Courts in the exercise of their sentencing powers to achieve greater consistency and predictability in the sentences that they impose for similar offenses by providing clearer guidance on sentencing and on sentencing methodologies. Besides, the Sentencing Council has the power to impanel a special three-judge High Court to hear selected Magistrate’s Appeals.

Since the introduction of the Sentencing Council, the Singapore appellate courts have been issuing sentencing guideline judgments with increased frequency, comprehensiveness and sophistication in analysis and methodology. Judging from the above analysis, Hong Kong also needs a sentencing council. We should take a leaf out of Singapore’s book.

Junius Ho Kwan-yiu is a Legislative Council member and a solicitor.

Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and the Macao Basic Law Research Center, and co-founder of the Together We Can and Hong Kong Coalition.

The views do not necessarily reflect those of China Daily.