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Thursday, January 07, 2021, 02:05
Just sentences reflecting culpability and mitigation
By Grenville Cross
Thursday, January 07, 2021, 02:05 By Grenville Cross

On December 30, in a case of global interest, the Yantian District People’s Court in Shenzhen sentenced 10 criminal fugitives from Hong Kong to various terms of imprisonment. They had earlier pleaded guilty to charges arising out of an illegal entry into mainland waters last summer. Two other fugitives, treated as minors (under 18), were not prosecuted at all, and can count themselves lucky. The entire exercise has provided some fascinating insights into mainland justice, not usually appreciated by outsiders.

The crimes themselves occurred on August 23, when the 12 fugitives, who were all facing trial or investigation in Hong Kong, and were mostly on court bail, tried to flee. Having boarded a speedboat in Sai Kung, they were hoping to evade justice by escaping to Taiwan, where they imagined they would enjoy safe haven. Their desire to escape is understandable, as the charges they faced included manufacture or possession of explosives, conspiracy to wound, arson, assault on police and rioting, and could result in severe punishment. One of their number, Andy Li Yu-hin, 29, was under investigation for endangering national security by colluding with foreign powers, and money laundering.     

Although there was initially speculation that at least some of the fugitives might be charged with national security offenses, this did not eventuate, which must have come as a great relief to them, and also their families. Instead, Tang Kai-yin, 30, and Quinn Moon Ying-yu, 33, the only woman in the group, were charged with organizing an unlawful border entry, the maximum sentence for which, under China’s Criminal Law, is 7 years’ imprisonment, and a fine. Since, moreover, the running of a cross-border people smuggling operation is a syndicated crime, punishable with life imprisonment, Tang and Quinn will also have been highly relieved that prosecutors chose not to prosecute them for this, as accessories, and settled instead for a lesser charge. The 8 other fugitives were charged with participating in an illegal entry, which carries up to 12 months’ imprisonment, and a fine. 

Because their crime “involved many people”, the court sentenced Tang to 3 years’ imprisonment, and a fine of RMB 20,000, and Quinn to 2 years’ imprisonment, and a fine of RMB 15,000. On the basis that their illegal border crossing involved a group entering under “serious circumstances”, the court sentenced each of the 8 other fugitives to 7 months’ imprisonment, and a fine of RMB 10,000. These sentences, therefore, were well short of the maxima which the judges could have imposed, and show they were prepared to be as lenient as the circumstances allowed. Indeed, they explained they had determined the appropriate punishment “after considering the circumstances, consequences, performance of repentance of each defendant, and sentencing recommendations of the prosecutors”.

The other two fugitives, Liu Tsz-man, 18, and Hoang Lam-phuc, 17, despite admitting their involvement, were not charged by the Yantian prosecutors, and, after a review, they were handed over to the Hong Kong police, on December 30. This was because they were minors at the time of the offense, and were thus considered to be deserving of particular leniency. In the mainland, every effort is always made to avoid entangling young people in the criminal justice system, provided the offense is not too grave, and this case is a vivid illustration of that enlightened approach.

In Hong Kong, however, and many other common law jurisdictions, people of the age of Liu and Hoang, whose youth is not extreme (under 16), and commit offenses of this sort, must normally expect to be prosecuted. Their youth, that is, does not provide them with a shield protecting them from the consequences of their crime. Instead, their age is generally reflected in a less severe sentence, often one which prioritizes reformation over punishment. The leniency extended to Liu and Hoang is, therefore, illuminating, and reveals a perspective of which some observers would not previously have been aware. 

Although, moreover, the judges could have sentenced Tang and Quinn to sentences closer to the maximum of 7 years’ imprisonment, they exercised their discretion not to, for which the pair will also be grateful. In assessing sentence, the court took into account their specific roles, whereby Tang purchased the speedboat and they jointly planned to smuggle the fugitives to Taiwan. It found, however, that they were not the prime movers in the crime, and “were organized by others to commit the crime”. In other words, they were accessories rather than principals, meaning their sentences could be reduced. In Hong Kong, a not dissimilar approach is also adopted, whereby, for example, the foot soldiers in a criminal enterprise may receive a lesser sentence than the mastermind, on the basis that different degrees of culpability can justify differential punishment.

As all 10 fugitives pleaded guilty, this was also factored in as mitigation, just as it is in Hong Kong, although the exact degree of the sentencing discount is not known. In Hong Kong, defendants who plead guilty at the first opportunity can, under Court of Appeal guidelines, receive a sentencing discount of up to one-third, although this can be reduced to about 20 percent if the plea is late, and the mainland now has a similar system. Under the “Sentencing Guidelines for Common Crimes”, which the Supreme People’s Court issued in 2014, an offender who voluntarily surrenders to the authorities can receive a sentencing discount of 40 percent, while somebody who confesses prior to trial receives a 20 percent discount, with an offender who pleads guilty at trial getting a 10 percent discount. In both jurisdictions, therefore, remorse is recognized as a potent mitigating factor, and the 10 fugitives, by pleading guilty, will undoubtedly have benefited considerably.

As in Hong Kong, moreover, justice requires that any time spent by an offender in custody prior to sentence should be factored in. Since the 10 fugitives spent four months in detention prior to trial, while their cases were being investigated and advised upon, this will now be taken into account in computing the actual terms of imprisonment to be served. What this means, therefore, is that the 8 fugitives who received 7 months’ imprisonment could be returned to Hong Kong in the very near future, particularly if there are any further reductions for good behavior. In both jurisdictions, remission is possible when prison inmates behave responsibly while serving their sentences.

There can, therefore, be little doubt, judging from the sentences, that all the mitigating factors upon which the fugitives could rely were placed squarely before the judges, and credit for this must go, at least in part, to their lawyers. Indeed, the judges said they had listened to “the defense of each defendant and their lawyers”. Since the enactment of the Regulations on Legal Aid in 2003, legal aid has been generally available to defendants in criminal cases, subject only to financial means, and subsequent legislative amendments have extended its availability. Although, at one time, their families reportedly wanted to retain alternative lawyers, there is no reason to suppose they would have done any more for the fugitives than the legal aid lawyers who were arranged for them, and who appear to have done a good job.

In recent times, there have been great changes in the mainland’s criminal justice system, often made after studying legal systems elsewhere. These have included higher qualifications for judges and legal officials, greater protections for criminal suspects, and improved trial procedures. The way in which the cases of the 12 fugitives were handled reflects this, and much of the sentencing exercise will have struck a chord with anyone familiar with common law practices. The 10 convicted fugitives have received sentences which not only reflected their culpability, but also gave full weight to their mitigation, and the outcomes which resulted should hearten fair-minded observers everywhere. 

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR. 

The views do not necessarily reflect those of China Daily. 

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