Dear me, this is not the way it was done when I was a court reporter. Last month three men were convicted in the Eastern Magistrates Court of malicious damage and illegal assembly. The magistrate ordered them to do 150 hours of community service and pay costs. On Monday the whole case was reopened at the behest of the prosecution, which complained that the sentence was insufficiently stringent. The magistrate, principal beak Bina Chainrai, decided to take a different view of the matter, and sentenced them to three and a half months in prison.
There is no equivalent procedure in English courts, though the prosecution can appeal against errors in law to the High Court. Allegedly erroneous sentences, on the other hand, stand. The only reason why the Department of Justice is allowed a second bite of the cherry in Hong Kong is because this is a colonial relic. During the early days of colonialism in Hong Kong it was not necessary for a judge to be a lawyer. The first magistrate was a converted policeman. In the early 1880s there was some discussion as to whether it was necessary for a magistrate to be a lawyer, and the government concluded that it was not, and appointed a school principal to the job. Well into the 20th century the Harbourmaster exercised jurisdiction over offences committee on ships, and well into the 50s District Officers were expected to resolve legal disputes in their districts, though they were offered a short law course to help them. Under these circumstances there was clearly a danger that a magistrate would do something nonsensical, and it was desirable to have a simple procedure whereby a proper lawyer could revive the case and invite the magistrate to think again.
But that was then and now is now. The learned magistrate in this case was neither junior nor unqualified. The prosecution had enjoyed every opportunity to put its case, both for the guilt of the accused and for condign punishment. No doubt there is always room for second thoughts, but there are worse things than the odd miscreant getting off light. The arrival of a government lawyer asking, and getting, a drastic change in the conclusion of a case which has already been decided looks disreputable. No matter how carefully the magistrate considers the matter there is an inevitable appearance of orders being given, and acted on. I see from the reports in one newspaper that Ms Chainrai said she could “see the severity of the offences from the video clips”. Were these clips not available at the original hearing? Justice mediated by video clips selected by the prosecution does not inspire confidence. Clips can be selected and edited to support many different points of view. You would think fairness would demand that the defence should be given the opportunity to view whatever video material is available before a biassed selection from it was put before the magistrate. I suppose this did not happen.
This is not just a matter of injustice to the three men concerned, though that is serious enough in itself. Two basic principles of sentencing are being flouted at the behest of the Department of Justice. The first is that it is generally not considered a good idea to jail people for a first offence. The purpose of punishment is to discourage future transgressions. Merely being arrested and convicted is a traumatic experience for many first offenders. Alternatives to prison are cheaper and avoid disrupting those aspects of the criminal’s life, like his work and his family relationships, which will help him to avoid further crime. It is also generally considered wrong in principle to sentence people to terms of a few weeks or months. This causes maximum disruption to the convict’s life, while offering prison staff no meaningful opportunity to ensure that he leaves prison a better man than he was when he arrived. Short-term prisoners are likely to be resentful, suicidal or both. Their custodians have no time to build meaningful relationships with them, still less to embark on such things as psychiatric treatment, remedial education, job training, and such. Moreover since prisons are, as Peter Kropotkin put it, “universities of crime” it is quite possible that the short-term prisoner will be more corrupted than improved by his experience.
These matters are, it seems, not much discussed in Hong Kong. I am an avid consumer of legal memoirs. Some of their authors come across as really nice people (Kamal Bokhary, whatever you think of his opinions, is a sweet guy) and some of them don’t (no names here, for obvious reasons). The one thing that such books have in common is the complete absence of any discussion of the effects of sentences on the people subjected to them. The system chugs on, displaying a monumental indifference to the value of other people’s time and a distressing willingness to impose on minor criminal figures the sort of sentences which would be considered excessive for a murderer in other jurisdictions. Meanwhile the only contribution that government lawyers can make is to urge magistrates to take their sentencing cue from the op-ed page of the China Daily and other newspapers of that ilk, which have been complaining for weeks about the absence of custodial sentences for political protesters.
We are all urged to respect the law. Respect must be earned. We are supposed to have an independent judiciary and government lawyers could set us all a good example by behaving as if we had a judiciary independent of them.
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