tim's experiment

Hello, what is this? Headline in the Hong Kong Standard: “Age of young offenders not most critical factor, magistrates told”.

The ensuing story relates that magistrates were told at a workshop that “providing an opportunity to rehabilitate does not mean that a defendant’s age can override other sentencing principles,” and so on for several paragraphs, to the effect that offenders who have committed public order offences should be sent to jail, age notwithstanding.

The workshop was organised by the Hong Kong Judicial Institute, a small off-shoot of the Hong Kong government. It nestles in the Judiciary, and is shy, but not secretive. Agile Googlers will find that the institute has the quaint old-fashioned habit of providing a directory of the phone numbers of all its staff. This comprises two directors (which seems a bit generous) three “counsel” and several secretarial people. It is presided over by a judge, I suppose as a public spirited part-time supplement to his usual duties.

The institute’s main activity is running lectures and seminars on legal topics for magistrates and judges. Many of them are uncontroversial and indeed — if you like that sort of thing — interesting. Among them is the occasional “sentencing workshop”.

Now I approach this particular workshop with some diffidence, because this comment comes at the end of a game of (no offence intended) Chinese whispers. The person who was actually speaking seems to have impressed one of the class sufficiently for him to pass the tale to a reporter for Sing Tao. From him it made its way (perfectly legally; they are sister papers) to the Standard, where because it was a “copy and translate” sort of job it was attributed to the man for all seasons, Staff Reporter.

So it is quite certain that several journalistic hands have tinkered with the story, which may also have been translated, possibly twice.

So I shall not linger over some infelicitous phrases, like ”Even though [protesters] mentioned freedom of speech and freedom of assembly in mitigation, the court should not take them seriously”.

One suspects that the organiser of this happy event might usefully have given more thought to what it would look like to outsiders. Justice is supposed to be public. Informing magistrates about recent cases is one thing, advising them in advance to disregard particular arguments is another.

Defendants are entitled to suppose that the magistrate dealing with their case is not implementing some rule which was propounded in a private workshop but has never been aired in public.

Another point which he seems to have overlooked is that much of sentencing is an art, not a science, and many areas are legitimately a matter of taste and opinion. Counsel for the defence will remind the magistrate that the politically-motivated wretch cringing before him in the dock was not motivated by avarice or lust, as most of his regular customers are. Politics may be a dubious game but at least it it not one of the seven deadly sins. 

Learned men, and indeed unlearned ones, can argue the point. The question of the defendant’s age is a different matter. This is not left to the whim of judges. There is relevant legislation.

The Juvenile Offenders Ordinance states that “No young person shall be sentenced to imprisonment if he can be suitably dealt with in any other way.” A young person, in this context, is aged 14-16.

The Criminal Procedure Ordinance states (clause 109A) “No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.”

This is not a trivial matter. This provision fulfils Hong Kong’s obligations to the UN Convention on the Rights of the Child, of which both Hong Kong and China are signatories. It states (Article 3)  “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Child, in this context, means up to 18 years old.

Those attending the workshop were told, apparently, about the case of a 15-year-old who threw Molotov cocktails and was originally placed on probation. After the Department of Justice appealed (aren’t they wonderful?) this was replaced with a detention centre order.

This was, I suppose, pursuant to the sentencing guidelines laid down by the Court of Appeal in the case of Joshua Wong and two others, who were accused and convicted of public order offences arising from the attempted “liberation” in 2014 of the former protest space outside Legco, which C.Y. Leung’s administration — in one of those soothing moments which made it so memorable — had fenced off.

Unfortunately there is one problem with relying on the Court of Appeal. Mr Wong and his two partners in crime appealed  to the Court of Final Appeal. The CFA recognised the right of the Court of Appeal to set sentencing guidelines, but overturned the prison sentences imposed on the trio on the grounds that guidelines should not be applied to cases which took place before they were promulgated.

The CFA also had some words about the fact that Mr Wong was a juvenile, which the Court of Appeal had disregarded. The CFA said “The age of an offender, whether youth or advanced age, is always a relevant mitigating factor in sentencing.” Got that? Always.

Turning to the actual case of Mr Wong, it went on to say: “There may be cases where the requirements of section 109A can properly be departed from since the circumstances will be such that it will be clear without the need to obtain further information that the only appropriate sentence is imprisonment. In the circumstances of the present offence of taking part in an unlawful assembly, this was certainly not one of those cases and the Court of Appeal erred in not following the requirements of section 109A.”

Accordingly it is not helpful to tell magistrates to disregard the age of the defendant in a category of cases. This is not the law. Only in the most serious cases will it be proper to disregard section 109A. In fact it would have saved everyone a lot of trouble if the magistrates had been told that any case of such seriousness would not be heard in a magistrate’s court anyway.

So calls for judicial child abuse can be disregarded.