Opinion | National security: Prohibition on suspended prison sentences highlights deterrence and punishment

By Grenville Cross

In 1971, the courts in Hong Kong were given the power to suspend sentences of imprisonment. Although a sentence can only be suspended if the offender has been sentenced to not more than two years' imprisonment, judges and magistrates regularly deploy suspended sentences.

If a sentence is suspended, it can last for anywhere between one and three years, depending on the court's order. If the offender behaves properly during the operational period of the suspension, the term of imprisonment will not be activated. This means the fate of offenders is in their own hands, and the ever-present threat of activation is a disincentive to further misconduct.

However, when the suspended sentence scheme was first mooted, it faced strident opposition in some quarters. Some people feared it might send out the message that the authorities were going soft on crime and might undermine the existing penalties' efficacy. This, in turn, could trigger a crime wave. To allay their concerns, when the Criminal Procedure Ordinance (Cap.221) was amended to create the power of suspension (s.109B), a schedule of excepted offenses was incorporated into it (schedule 3).

Until March 23, 2024, when the Safeguarding National Security Ordinance (A305) (SNSO) was gazetted, Schedule 3 contained 41 excepted offenses for which suspension was impermissible. They covered all types of offenses, including affray, assaulting a police officer, unauthorized possession of arms and ammunition, drug trafficking, indecent assault, manslaughter, rape, robbery and wounding with intent.

In 2014, after a lengthy review, the Law Reform Commission (LRC) published a report which recommended that Schedule 3's list of excepted offenses should be repealed. It concluded that the courts should not be prevented from exercising their discretion to achieve a just and appropriate sentence depending on the circumstances of the offense and the offender, including the option of suspending custodial sentences. In other words, the view was taken that the more sentencing options available to the courts, the better, and that the hands of judges and magistrates should not be unnecessarily fettered.

In 2021, after a lengthy consultation exercise, the LRC reported that the administration had reservations over the proposed abolition of Schedule 3's excepted offenses "in the near future". The Security Bureau opined they were "amongst the most serious and violent in our criminal codes", and its repeal could lead people to believe that "such offenses are now less culpable and could be treated leniently". This was undesirable, and "contrary to the Government's firm stance in upholding law and order".

The HKSAR government's position on excepted offenses was undoubtedly hardened by the experiences Hong Kong underwent during the insurrection of 2019-20. Violent mobs made every effort to destroy the "one country, two systems" governing policy and undermine national unity, and there had to be consequences. Leniency for those responsible was clearly out of the question, and, once convicted, they had to face the full force of the law. The debate about repealing Schedule 3 is, therefore, effectively over, and the utility of excepted offenses has been highlighted by the latest development.

On March 23, the SNSO amended Schedule 3 by adding a fresh category of offenses that do not qualify for a suspended sentence of imprisonment (s.148). To the existing excepted offenses, "An offense endangering national security" was added. This, therefore, is comprehensive, and any national security offense is exempted from suspension, whether arising under the SNSO or the National Security Law for Hong Kong.

Although some people queried the inclusion of national security offenses in Schedule 3, it would have been extraordinary if it were otherwise. By their very nature, these offenses can threaten not only the security of HKSAR but also the country's survival. Offenders will rarely, if ever, have any serious claims on leniency.

Cases can undoubtedly arise where the gravest punishments are not imposed on national security offenders. Young offenders, for example, might sometimes qualify for detention in places other than prison (including detention, rehabilitation and training centers), but this does not diminish the gravity of their crimes. Whenever national security is endangered, the interests of deterrence loom large, and excepted offenses further this objective, as is recognized elsewhere.

In Canada, for example, although sentences of imprisonment can be suspended, there are also several excepted offenses. If an offense involves serious personal injury, sexual assault, terrorism or criminal organization, it is excluded from the suspended sentence regime. As in Hong Kong, Ottawa recognizes that although suspended sentences are justifiable for some offenses, the public interest requires that particular crimes should be exempted.

In any event, even if national security offenses were not classified by the SNSO as excepted, very few offenders would ever satisfy the qualifying criterion by receiving a sentence of less than two years' imprisonment. This means, therefore, that the SNSO's excepted offenses will not have a significant impact in practice. However, what their exemption will do is help to reinforce the government's central message that anybody who endangers national security will face serious consequences and that lenient punishments will invariably be hard to come by.

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

The article was first published in China Daily.