Opinion | National Security Law sentencing: Mitigating factors and their impact

By Grenville Cross

Mitigation has always been a vital part of the sentencing process. Occasionally, as with murder, where the sentence of life imprisonment is fixed by law, it has little role to play, but most offences are not in that category. Whereas the legislature sets the maximum sentence for an offence, the courts generally enjoy a discretion as to the actual sentence to be imposed, which is influenced by the aggravating and mitigating factors.

If aggravating factors exist, the court may impose a higher sentence. These include such things as the defendant's previous offending, the degree of violence used, and an abuse of trust. If, moreover, an offence is becoming prevalent, as where a new narcotic is being trafficked by the dealers, the court may have to impose a tough sentence, in order to try to nip the crime in the bud and deter others from getting involved.

If, alternatively, mitigating factors exist, the court will try to take them into account. A guilty plea, for example, is powerful mitigation, and, if entered timeously, can attract a sentencing discount of one-third. Other factors which might incline the court to leniency include such things as good character, a record of public service, and restitution to the victim. If the defendant's role in a criminal enterprise is minor, this also may tell in his favor, as also may his involvement in the offence being the result of peer pressure or even duress.

However, the more serious the offence the less the impact of mitigation is likely to be. The courts have a duty to punish appropriately those defendants who commit serious crimes, and undue leniency may send the wrong message to other potential offenders. The victims of crime, moreover, expect those who violated their rights to be properly sentenced, and the courts need to ensure that the sentences they impose are such as to provide the law-abiding public with the protections they need from further depredations.

With some offences, such as those involving road traffic, "circumstances of aggravation" are specifically included in the offence provisions, and these justify higher penalties. If, for example, a driver commits a motoring offence when under the influence of alcohol or narcotics, the punishment, the legislature has ordained, should be more severe. Again, an offender who repeats an unlawful gambling offence will face a higher maximum sentence on his second or subsequent conviction than he did on his first.

What, however, is highly unusual, if not unprecedented, is for a particular law to incorporate specific mitigating factors for the sentencing court to consider. But the National Security Law (Art.33) does exactly that, and contains a provision by which the trial court may impose a lighter penalty, or the penalty may be reduced, or, in the case of a minor offence, exempted, in three situations. These arise: firstly, if the accused person has, during the commission of the offence, voluntarily discontinued his or her involvement or effectively forestalled its consequences; secondly, if the accused person has voluntarily surrendered himself or herself and given a truthful account of the offence; and, thirdly, if the accused person has reported an offence committed by others, or provided information which assists the authorities in solving another criminal offence.

It is noteworthy that, although Art.33 refers to both a "lighter penalty being imposed" and to the penalty being "reduced", the difference between these two types of sentence reduction is not apparent. It may be, however, that whereas one limb affects the category into which the defendant falls for sentencing purposes, ranging, in subversion cases, from "principal offender", "active participant" to "other participant", the other limb concerns the impact of mitigation in the conventional sense, and that second limb now requires interpretation.

Indeed, as the three factors highlighted in the National Security Law are already mitigating factors under the general criminal law, the question arises of why they have been singled out in this way. On its face, it appears to suggest that, before a trial court can reduce the sentence for an offence under this law, one or other of those three factors must first be present, and that other mitigating factors are simply not relevant.

If that interpretation is correct, it would mean that such things as the defendant's clear record, or his mental illness, or his having been coerced into committing the crime, are no longer relevant as mitigation. This, of course, would be a huge break with traditional sentencing practice, and this may not have been what the drafters intended.

The courts will need to resolve this issue at some point, which may be sooner rather than later, as the first national security trials are already in train. When they do, it seems likely that they will try to find a way of ensuring that all the other mitigating factors, which the courts have developed over many years, can still be considered, if appropriate. They could do this, for example, by deciding that the effect of Art.33 is to require that greater emphasis is placed upon the three factors it highlights, but not to exclude completely all other mitigating considerations.

Some mitigating factors, such as age, coercion or provocation, can have relevance in respect of even very serious crimes, although it may not be great. The courts will need to see if they can still take them into account by avoiding a restrictive construction of Art.33, although they may find this problematic. If so, a statutory interpretation, as contemplated by the National Security Law (Art.65), may become unavoidable, although this should be a last resort.

Grenville Cross is a Senior Counsel and Professor of Law, and was previously the Director of Public Prosecutions of the Hong Kong SAR

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