Opinion | Sentencing offenders: An art and not a science

By Grenville Cross

In recent times, there have been criticisms, sometimes justified, of the courts for imposing unduly lenient sentences on defendants convicted of protest-related crime. Some people, moreover, have complained of inconsistent sentences, and called for a Sentencing Council to be created, to direct the courts and ensure better sentencing. This, however, is alien to our jurisprudence, and also unnecessary.

Quite clearly, a consistent approach to sentencing is a good thing. There should not be wild fluctuations in sentence, depending on the personal views of the judicial officer who happens to be trying the case. However, consistency of sentencing does not mean that each and every case has to be treated in exactly the same way, regardless of aggravating or mitigating factors.

If there were to be absolute consistency, every thief, for example, would receive an identical sentence, irrespective of the circumstances, which would be unjust. An elderly shoplifter, who steals from a supermarket because he has no money and is starving, clearly cannot be punished in the same way as a young shoplifter, who has plenty of money but steals just for the fun of it.

But, although the courts have a discretion when selecting the most appropriate sentence, their discretion cannot be unfettered, and any sentence must have a legitimate foundation. If unjustifiable disparities in sentence arise, it can engender a sense of grievance among other offenders who are sentenced appropriately, and also undermine public confidence in the legal system. To avoid this, sentencing guidelines have an important role to play, as they help to ensure, at least in relation to some offences, that there is an overall consistency of approach.

Some years ago, the Criminal Court Users Committee, which comprises the various legal stakeholders, decided that Hong Kong did not need a Sentencing Council to formulate guidelines, such as exists, for example, in England and Wales. This was because Hong Kong is a small place, and there is regular liaison between its different courts, which are well aware of what is happening elsewhere. Instead, the Committee decided that, where guidelines are necessary for a particular offence, the Court of Appeal, which has an overall view of things, was the most appropriate body to formulate them.

Although some offences, such as manslaughter and unlawful wounding, are unsuitable for guidelines, as their circumstances differ so greatly, guidelines are nonetheless helpful in a variety of areas, both general and specific.

Thus, for example, the Court of Appeal has decided that, if a defendant pleads guilty at the first opportunity, he or she will receive a sentencing discount of one-third, although this will be substantially reduced if the plea only arrives later on, such as the trial day. If, having pleaded guilty, a defendant then decides to assist the authorities, and his assistance, for example, leads to the arrest of other criminals, the sentence may be reduced by up to 50 per cent. If, moreover, the defendant is in the "supergrass" category, meaning he has given substantial co-operation and testified for the prosecution on more than one occasion, the discount rises to two-thirds.

In some of its judgments, the Court of Appeal, rather than providing specific guidelines, has issued sentencing tariffs. It has, for example, indicated that the usual sentence after trial for a burglary in domestic premises, without aggravating or mitigating factors, is 3 years' imprisonment. Again, an armed robbery in domestic premises will attract 6 years' imprisonment, although this will be increased if aggravating factors, such as physical violence, are present. For an offence of rape, moreover, a minimum sentence of 5 years' imprisonment has been approved, although this will rise if, for example, there is undue force, or more than one offender is involved, or a lone woman is attacked late at night.

The use of sentencing guidelines has proved to be of particular value in the combat of narcotics offences, which are widespread. For trafficking in various types of drugs, such as heroin, ketamine and opium, the Court of Appeal has indicated sentencing ranges based on quantity, all designed to deter potential offenders. Thus, for example, a defendant who traffics in up to 10 grams of heroin will be sentenced to between 2 and 5 years' imprisonment, while somebody who traffics in amounts of between 4,000 and 15,000 grams will face a sentence in the range of 26 to 30 years' imprisonment, and there are several sentencing bands in-between these two.

Sometimes, when providing guidance, the Court of Appeal simply indicates that, for certain offences, a particular type of punishment is generally appropriate. If, for example, there is an unlawful assembly involving violence, then, it has said, immediate sentences of imprisonment will be justified. Again, imprisonment is the usual sentence for a defendant who assaults a police officer acting in the course of his duty, as such behavior must be deterred.

The Court of Appeal has, however, also made clear that, when it issues sentencing guidelines or tariff judgments, they are not strait-jackets, and a judge can depart from them for good reason (Attorney General v Yau Koon-yau, 1985). If, for example, the defendant has previous convictions, a higher sentence than that indicated by the guidelines may well be justified, although, if he is very young, a lesser sentence will often be appropriate.

When all is said and done, sentencing is an art, not a science. A judge, by balancing up various competing factors, must try to arrive at a just sentence. The system may not be perfect, but it nonetheless generally works well. If mistakes are made, a remedy exists. Just as a defendant can appeal against a sentence considered to be too severe, so also may the Secretary for Justice seek a review of a sentence deemed to be unduly lenient.

In 2018, the Secretary for Justice invited the Court of Appeal to correct sentencing errors in 6 cases, up from 5 cases in 2017. Although it usually increases sentences which are manifestly inadequate, the Court of Appeal has nonetheless emphasized that leniency, of itself, is not a vice. This is because there must always be scope for a court to impose a lesser sentence, provided it is objectively justifiable.

Grenville Cross SC is the sentencing editor of Hong Kong Cases and Archbold Hong Kong, and the co-author of Sentencing in Hong Kong (LexisNexis).

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