Opinion | Traditional approach to prison sentences should be preferable

By Grenville Cross

In the consultation exercise it launched on Jan 30, the Hong Kong Special Administrative Region government unveiled its thoughts on the shape of its forthcoming national security legislation, the Safeguarding National Security Ordinance. The Basic Law requires the government to enact national security laws (Article 23), and a comprehensive package was unveiled, extending beyond what is strictly required. Whereas existing laws will be modernized, including espionage, sedition and treason, conduct such as foreign interference, insurrection and sabotage will be criminalized.

When introducing the package, the chief executive, John Lee Ka-chiu, emphasized it was "a defensive law". It was not directed at other places but designed to secure the city's position. He said, "The new law aims to create a stable and safe environment so that when people attack us, we will be protected," which will reassure the public and the business world.

Although the consultation paper is thorough, it avoids a detailed analysis of the penalties for the new offenses. While the focus is on the ingredients of the offenses, the punishments have yet to be formulated. Although the penalties for the existing offenses are indicated, including for sedition and treason, as are the sentences available in other jurisdictions, the government is now in listening mode.

One immediate issue is whether, in determining sentencing levels, there needs to be convergence with the approach adopted by the National Security Law for Hong Kong (NSL), enacted by the Standing Committee of the National People's Congress in 2020. Structured penalties were created for the NSL's four offenses. Consequently, both maximum and minimum penalties are prescribed, which is not usual in Hong Kong's jurisprudence.

The traditional practice in common law jurisdictions is for the legislature to fix a maximum sentence for the offense, and then to leave the actual penalty to the court's discretion. Whereas, for example, the highest punishment for theft is 10 years' imprisonment, minor cases arise, often with strong mitigating factors, and short suspended sentences of imprisonment, and even fines, are by no means uncommon. Although there are rare offenses when the hands of the court are tied, as with murder, which automatically attracts life imprisonment, the common law has always prioritized judicial discretion in sentencing.

A court should, when considering its sentence, always have regard to the intention of the legislature, as indicated in the penalties provided. However, it still has to measure the case before it against the scenario capable of attracting the maximum penalty. As the former chief justice of England and Wales, Lord (Peter) Taylor, once explained, sentences should "take their color" from the maximum penalties provided. However, the maximum is generally reserved for the most serious offense of its type. In the right case, it is recognized that a court can temper justice with mercy, producing a very lenient sentence.

In Hong Kong, as in other common law jurisdictions, the legislature has generally set its face against the imposition of minimum sentences. Although the Public Order Ordinance (Cap.245) created circumstances in which a court may be required to sentence a young offender to up to three years imprisonment or else to a detention (or other) center for unlawful possession of an offensive weapon (Section 33), this is highly unusual. Even then, former appeal court judge Sir Alan Huggins said that if he could have found a loophole enabling him to decide that Section 33 did not lay down a mandatory sentence, he would have seized it.

In 1972, the Full Court (the Court of Appeal's predecessor) made clear it did not favor mandatory sentencing. It explained, "It is because every case is different that it has for centuries been thought right to give a wide discretion in the matter of sentence to the courts and if the courts have not always exercised their discretion wisely it does not necessarily follow that the principle is bad." ((1972) HKLR 370) If a judge or magistrate, in exercising the sentencing discretion, passes a sentence that is manifestly excessive or unduly lenient, the aggrieved party, including the secretary for justice, can always invite the Court of Appeal to put the matter right.

On the Chinese mainland, as in other civil law jurisdictions, it is not uncommon for there to be minimum sentences, and for specific sentencing bands to be stipulated. Thus, for example, the Criminal Law of China (2017) provides three sentencing bands for a convicted thief. The actual band will depend on the circumstances of the case and its gravity. Whereas the lowest sentencing band is up to three years' criminal detention, the second band is three to 10 years' imprisonment, while the third band is 10 years to life imprisonment (Article 264).

In Germany, whose legal system influenced China's own development, a similar pattern exists. Whereas, for example, the German Criminal Code stipulates that a serious theft case is punishable with imprisonment of not less than three months and not more than 10 years, a burglar faces between six months and 10 years' imprisonment (reduced in less serious cases to a band of three months to five years' imprisonment); (Section 242).

Therefore, when the NSL was enacted, it was no surprise that Beijing's drafters adopted structured penalties, including minimum sentences. Thus, for example, a principal offender convicted of secession faces a sentence in the range of 10 years to life imprisonment, an active participant will be sentenced to between three and 10 years' imprisonment, while a less-culpable secessionist faces up to three years' imprisonment, or alternative types of detention or restriction (Article 20).

As the implementation of the Article 23 proposals is being handled by Hong Kong alone, there is no good reason why its traditional approach to sentencing should not prevail. The Basic Law envisages continuity in how Hong Kong conducts its legal affairs (Article 8), including its common law practices, and there is nothing to require a departure from the norm. The creation of maximum penalties that leave the courts with wide discretion is something the public understands, and the system is tried and tested.

In determining what those maximum penalties might be, various factors are relevant. They include the gravity of the offense, the objective sought to be achieved, the level of deterrence required, and the approaches adopted under the existing domestic law (if any) and in other common law jurisdictions.

Applying these criteria, treason and related acts, for example, should be punishable with life imprisonment (as in the UK and Canada). A strong case also exists for saying that espionage, insurrection and sabotage, each of which can pose a huge danger to national security, should attract the same maximum penalty. In the UK, moreover, the unauthorized use of a computer in a way that endangers national security is punishable with life imprisonment, and this guides the current exercise.

However, on the suggested criteria, life imprisonment need not be adopted for every proposed offense. Thus, for example, 14 years' imprisonment should suffice as the maximum penalty for seditious activities, as well as for incitement to mutiny or disaffection.

In Australia and the UK, the maximum penalties for somebody who collaborates with a foreign power to interfere improperly with their internal affairs are, respectively, 20 and 14 years' imprisonment. Nobody could reasonably complain if the proposed offense of "external interference" were also to be punishable with up to 20 years' imprisonment.

As the secretary for justice, Paul Lam Ting-kwok, has stressed, the NSL is "a national law" drafted "according to mainland practice". By contrast, the Safeguarding National Security Ordinance will be homegrown, and its penalties lend themselves to customary drafting. After all, there is no reason to suppose national security will be in any way imperiled if policymakers simply select the maximum penalty for each of the new offenses, and leave it at that.

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The article was first published in China Daily.