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Posts Tagged ‘criminal-law’

The law’s delays … yet again … sorry

Posted in Uncategorized, tagged , , on October 17, 2024| 1 Comment »

I have been complaining for many years – it’s not particularly fun but someone has to do it – about the lamentable speed with which prosecutions proceed in Hong Kong.

Survey of international standards here. You will notice that this case predated both COVID-19 and the 2019 arrestfest. I will not repeat the details. Suffice to say that in the absence of special circumstances two years between arrest and trial is widely regarded as an infringement on the rights of the accused, and three years as so unacceptable that less serious cases at least should be dropped altogether.

But that is not how we do things here. Four years or more is regarded as perfectly acceptable. As a result we have cases in which the convicted defendant walks free because he has already served his sentence in bail-less custody before the trial, and a recent case where erroneous prosecution evidence was excused by the judge on the basis that the events occurred a long time ago.

Let us note in passing that this was a serious error. The onus is on the prosecution to prove its case beyond reasonable doubt; any deficiency in that case should help the accused. It is not the judge’s job to rehabilitate the reputation of police witnesses.

Last week we had a new horror, so outrageous as to attract the attention of the presiding judge. Invited to pass sentence on four participants arrested at a riot scene in 2019, five years ago, District Judge David Cheung announced the intention to look into any delay in the prosecution and asked for a time-line.

It is not for me to put thoughts into the judge’s head, but what may have attracted his attention is that two of the defendants were twins who, at the time of the offence, were 14 years old.

This presents an interesting sentencing dilemma. At the time of the riot the twins would have been eligible for a variety of treatments designed specifically for juvenile offenders. With the passage of time they have now become adults.

This is not supposed to happen. The law recognises that in most cases it is not appropriate to deal with young offenders in an adult court, and though exceptions are sometimes made they are rarely made for 14-year-olds.

Delaying the proceedings for so long that the defendants become adults not only deprives them of the special arrangements made for young offenders (informal procedure, presumption in favour of rehabilitation etc.) but also of the restrictions on the reporting of juvenile proceedings.

If the twins had been dealt with in a juvenile court, as they should have been, it would have been an offence for the media to report their names or any identifying details. Their names are now all over the place, with effects which may include adverse discrimination in bids for employment or education.

No doubt the judge will consider whether perhaps this exposure in the public pillory may be punishment enough.

After the UK government sped its local rioters into court within a week one of the China Daily tellers of good stories about Hong Kong observed that there would have been international criticism if Hong Kong had done the same. That may be true, but there is a happy medium in these matters. Five years is not a material improvement on five days.

It must also be said that if a case in England had taken so long that a 14-year-old defendant appeared for sentencing at the age of 19 there would be an almighty and amply justified row. Heads would roll.

You have to wonder what the Secretary for Justice tells his children he does for a living. Practising for when the Olympic authorities finally recognise snail-herding as a sport?

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A national security sentence is longer than you think

Posted in Uncategorized, tagged , , on April 25, 2024| Leave a Comment »

It is a commonplace political observation that carelessly passed legislation often has unintended – and maybe ridiculous – effects. Our newly minted local legislators seem to have neglected this important warning.

We are all, these days, eager to secure national security. Attempts to achieve this by jailing those convicted of national security offences for long periods have reached a curious position.

Readers will recall that under the national security law bestowed on us by Beijing, national security offences come, like Pacific Coffee, in three sizes: small, medium and large. Those convicted must be imprisoned (there is no room for the usual alternatives; they do not mess around in Beijing) for terms ranging up to five years, from five to ten years or from ten to 15 respectively.

It has already become clear that five is going to be a hot number. In the present climate nobody, or at least nobody in the Department of Justice, is going to risk classifying a nat sec offence as anything which could be mistaken for “trivial”. So the popular classification among prosecutors is the medium one.

When the case finds its way to the sentencing judge, however, some comparison is inevitable with sentences commonly imposed in less political cases, and a five-year stretch is usually reserved for cases involving the violent separation of a victim from his health or property, or large quantities of drugs.

So five years is likely to seem enough for nat sec cases, most of which involve the holding and expression of inconvenient opinions. Note, though, one curiosity which will become relevant later: the Court of Appeal has decided that the five years is not a guideline, like the conventional suggestions on sentencing which it dispenses. Five years is a solid minimum, so the usual discount for pleading guilty is not available.

Traditionally, if you pleaded guilty, you got a third knocked off what would otherwise have been the sentence. Recently local judges have followed an odious innovation from the UK and replaced the one third discount with a sliding scale. You get one third off if you plead guilty at the earliest opportunity. After that the scale of the discount declines, reaching 20 percent at the trial kick-off and ten percent later.

The objection to this is that it encourages prisoners to admit offences before taking legal advice, which in complicated cases may mean they admit a charge to which they have a good defence. Never mind.

Now we come to the local contribution to the punishment regime, which is that nat sec prisoners will not be eligible for any of the usual early release schemes, unless the Commissioner for Correctional Services is satisfied that they will not infringe again.

Given the difficulty of proving a negative and the degree of nat sec paranoia expected of senior officials these days this looks like a plausible way of ensuring that nat sec offenders are going to be enjoying the correctional M and Ms for a long time. No doubt that is its intention.

And this gives rise to a curious situation. Let us take two prisoners, who were arrested on the same day and kept in custody thereafter. One of them is an Ordinary Decent Criminal (a term coined in Belfast for miscreants motivated by greed rather than politics) and the other is a nat sec offender.

The ODC has committed armed robbery. The judge takes as his starting point in sentencing the guideline supplied by the Court of Appeal for this offence (provided no firearm is used) which is five years. The ODC has pleaded guilty at the first opportunity so he gets the full one third discount and is sentenced to three years and four months in jail. The nat sec offender, whether he has pleaded guilty or not, gets the grande five-year minimum.

Let us suppose they share a cell. You may think that the ODC, lucky chap, will be leaving a year and a half or so before his neighbour, but that is not so. He can apply for release under supervision after serving half of his sentence, which would be just 20 months, or a little over a year and a half. If he does not fancy being supervised by the Correctional Services he can wait a bit longer and, if he behaves himself, get the discount for good conduct which is one third of your sentence. This would get him out after just over two years, on the streets and unsupervised.

At this point his cellmate still has virtually three years to serve. This is likely to strike both of them as rather unfair.

You can look at it another way. What would the sentence have to be if a judge wished to ensure that an ODC would actually, like our nat sec offender, be off the streets for five years, even if he qualified for the guilty plea discount and early release. The answer is 15 years.

This weird situation is a predictable result of the system of sentencing and imprisonment which has been around a long time. You might hope that legislators who were proposing to tinker with it would have first studied it in sufficient detail to avoid constructing obvious new anomalies. You would hope in vain, apparently.

The purpose of the guilty plea discount is to encourage early pleas, which save the time and expense of a contested trial. It appears that if you are accused of a nat sec offence you might as well try your luck in court. You won’t get the discount anyway. At least it will give you a few chances to wave at your mother.

Similarly the purpose of releasing prisoners early if they behave themselves is to encourage conformity to prison rules and sincere participation in rehabilitative activities. If these are desirable objectives you might think they would be equally desirable for all prisoners.

National security is an important objective of the law and order industry. So is fairness.

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