On June 15, the Hong Kong Judicial Institute held a workshop titled “Sentencing Guidelines for Young Criminals” for members of the Magistrates’ Courts. Sentencing guidelines for juvenile offenders involving arson, illegal assembly, assaulting a police officer, possession of offensive weapons in public places, and criminal destruction were some of the many topics discussed. Regarding the above, here is what we have to say:
First and foremost, being young is not a sufficient factor for disregarding the sentencing principles. It is no secret to most lawyers that the courts, under the Juvenile Offenders Ordinance, prefer to mete out lighter sentences for young offenders like community service over immediate imprisonment. The corollary of this practice, however, actually renders youths more vulnerable. Criminal organizations aware of this approach prey on the young by engaging them in unlawful activities with the promise of quick money. After all, even if they are caught red-handed, a light sentence is almost assured.
Punishment, in the context of the law, is meant to create a deterrent effect with the goal of maintaining social order. If that is not achieved, the punishment, or the law, is simply not serving its purpose. Last year alone, there were 16 applications filed for sentencing review on young offenders related to the 2019 black-clad riots, and an overwhelming 15 successful applications indicated that the High Court regarded the initial sentencing by magistrates as being too light.
For instance, a 15-year-old who threw three petrol bombs onto a public road was initially sentenced to 18 months’ probation by the Magistrates’ Court. The Court of Appeal, however, adjudged that sentencing the offender to a rehabilitation center is a more-fitting punishment for the crimes committed. In another example, two 15-year-olds, a boy and a girl, were caught in possession of petrol bombs that they had dumped into the Chai Wan police division-tied quarters, causing considerable damage to certain units. The two were sentenced to probation for one year and three years respectively. After filing for an appeal, the girl was given a sentence of a 120-hour community service order, and the boy was sent to a rehabilitation center. It is worth mentioning that the Court of Appeal pointed out the Magistrates’ Court’s excessive light sentence, which does not serve the defendant well: Facing a sentence review can add to the stress on the defendant and that could be avoided if it is properly handled in the first place; but, if the review is successful, the defendant will face a heavier sentence, which will indubitably disrupt the rehabilitation process the defendant had undergone.
These guidelines … are not merely a reference but also serve to make the judicial system more efficient
According to the figures published by the Hong Kong Police Force, as of April, 10,260 people had been arrested, and more than 2,600 people had been prosecuted for offenses related to the social unrest in 2019. The 2019 black-clad riots placed an unprecedented burden on the police force as well as the judiciary. Worst of all, other criminals took advantage of the lack of police surveillance in other types of crimes, as a large portion of the force was deployed for riot-related cases. One notable example was online drug trafficking, which saw a sharp increase from 2018 to 2019, and the use of banned substances by people under 21 increased by 48 percent in the same period. Likewise, the judiciary was swamped with an extraordinary workload. However, the magistrates only have themselves to blame for giving light sentences to these young offenders in the first place and having them overturned in the Court of Appeal — making more work for themselves. This is why these guidelines exist; they are not merely a reference but also serve to make the judicial system more efficient.
Furthermore, Article 25 of the Basic Law stipulates that all Hong Kong residents are equal before the law. When defendants are sentenced with very different penalties for the same crimes committed, the principle of equality is undermined. The function of the workshop therefore, was to re-emphasize this principle and to reach a consensus on sentencing young convicts, especially in the face of unusually lenient sentences. It is also worth mentioning that what comes out of these workshops is neither a judgment nor a direction issued by the chief judge of the Court of Final Appeal. Ergo, lower-level magistrates will not be held responsible for infringing the principle of the precedence of law if they fail to follow suit, but we are of the belief that every legal practitioner should nonetheless use these guidelines as a starting point.
In short, the age of the defendant should never be the standalone factor in deciding his or her sentence; rather, it should always depend on the severity of the crime and the circumstances of the case. In some serious cases, the court must mete out sentences in accordance with the rule of law and be immune to public opinion.
Junius Ho is a Legislative Council member and a solicitor.
Kacee Ting is a barrister and a part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center.
The views do not necessarily reflect those of China Daily.