Recently, public discourse has once again focused on Jimmy Lai's case, involving allegations of collusion with foreign or external forces to endanger national security, particularly the defendants' mitigation efforts. In Lai's case, the defense has relied on health reasons and treatment in prison to request a reduced sentence, necessitating substantial evidence to support these claims and establish a factual basis. Without relevant factual support, there should be no room for the defense's arguments for leniency. The court must also consider whether the sentencing aligns with the defendant's culpability and social justice.
The Role of Lawyers and Legal Integrity
In the judicial system, lawyers are crucial in upholding the rule of law and justice. They serve as a bridge between the parties and the court, handling legal documents and procedures while advocating for their clients' best interests. While lawyers owe fidelity to their clients, they are not allowed to uncritically repeat their clients' views. One of the more significant roles of a lawyer is as an "Officer of the Court," bearing a paramount professional responsibility to the court. Therefore, any statements made or arguments presented to the court, as well as analyses or judgments of the case, must be based on law and fact and grounded in professionalism and integrity.
In plea hearings or other proceedings, if lawyers only echo their clients' wishes without exercising professional independence, they risk misleading the court, which could not only result in misrepresentation of facts but also undermine the defendant's interests. A lawyer's professional duty is not only to act as a spokesperson but also to clarify the case and evidence with their legal knowledge, proposing valid and legally sound defense strategies based on applicable legal principles.
In practice, some inexperienced lawyers may overly rely on defendants' statements, lacking independent and professional legal judgment. For example, in past sexual assault trials, some lawyers have directly quoted defendants' subjective views on victims' appearances in an attempt to weaken the credibility of victim testimony, which the court criticized as highly inappropriate and unprofessional. In such cases, lawyers must ground their defenses in facts and verifiable evidence rather than resort to character attacks.
"Professional independence" does not equate to opposition to clients; rather, it means that lawyers should use their expertise to assist clients in understanding reasonable defense strategies. When a client's instructions conflict with legal principles, a professional lawyer should possess the ability and balanced judgment to provide appropriate legal advice, and if necessary, terminate their representation. This professional spirit and judgment form the foundation of the trust placed in lawyers by the court and society.
The Mitigation Phase and the Burden of Proof
Like other common law jurisdictions, Hong Kong upholds the principle of "presumption of innocence." Criminal trials are generally divided into two main stages: conviction and sentencing. The former determines whether a defendant is guilty, while the latter decides the penalty post-conviction. During the conviction stage, the prosecution bears the burden of proof, needing to provide sufficient evidence to demonstrate the defendant's guilt "beyond a reasonable doubt." The defense's task is to counter the prosecution's evidence, identifying doubts, or presenting specific legal arguments. If reasonable doubt exists, the court must acquit the defendant.
Once a case reaches the sentencing phase, the focus shifts from questioning guilt to presenting reasons for leniency for the court's consideration. If the defense claims certain facts for a lighter sentence, such as the defendant's background, motivations, remorse, reform, family support, or health issues, it must provide proof to the court.
For instance, if the defendant claims poor health, family hardships, or past reform, the court will not simply accept this based on the lawyer's statement alone; it will likely require concrete, verifiable evidence, such as medical reports or proof of family responsibilities. In some cases, the court may even require the defendant to testify and undergo cross-examination to verify their claims. Without substantial evidence to support these assertions, the court typically will not consider them as valid factors affecting sentencing. The burden of proof during the plea phase reflects the rigor of legal procedures: even in plea considerations, evidence and logic must prevail to ensure fair sentencing and prevent defendants from evading appropriate punishment via unsupported claims for leniency.
Thus, the burden of proof in the plea phase is a key element in safeguarding the integrity of the criminal justice system, reminding the defense that any considerations for leniency must be fact-based and that the court must balance compassion with rationality. While the law can accommodate human feelings, it cannot deviate from its principles.
In Lai's case, the medical reports submitted by the prosecution indicate that his health condition is stable, with no unusual weight or other relevant indicators. Additionally, under the Prison Rules, he has access to appropriate medical care, exercise, and recreational arrangements. If the defendant wishes to seek a reduced sentence based on health reasons (e.g., weight fluctuations) or treatment in prison (e.g., "solitary confinement"), substantial evidence must first be presented to support those claims and establish a factual basis. Without relevant evidence, the defense's arguments for leniency should not be accepted; otherwise, it could lead to detained or imprisoned individuals attempting to evade their sentences through similar approaches, thus affecting judicial fairness and effective correctional management.
Society sometimes mistakenly views pleas as extensions of conviction disputes, believing that presenting personal or family hardships, or social contributions, can "rewrite facts." This is a misunderstanding. The plea phase concerns the adjustment of punishment and is unrelated to culpability. When the court reviews plea arguments, it considers not whether the offense is established, but whether the sentencing aligns with the defendant's culpability and societal justice. Factors like the defendant's background, remorse, and consequences of actions are indeed worthy of consideration but can only influence the severity of the punishment within the established culpability, not overturn it.
(Source: LegCo member Alex Fan published on Wen Wei Po)
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