Following the outbreak of large scale anti-government protests in Hong Kong in the second half of 2019, the city’s judiciary has found itself at the vortex of political rivalries between the blue and yellow camps. An accusing finger has been pointed at the unduly lenient sentences imposed on some defendants convicted of protest-related crimes. It was alleged by some blue commentators that these judgments were perceived to be made by judges of the yellow camp.
Unsurprisingly, it has angered the blue camp and sent a ripple of anxiety through the legal profession. In response to this, Geoffrey Ma released public statements to dispel misconceptions on biased rulings. The proposal to set up a sentencing council has also been dragged into the spotlight as a remedy to achieve greater consistency in sentencing and restore public confidence in the judiciary. The pros and cons of a sentencing council will be examined below.
Unlike Hong Kong, some common law jurisdictions have set up non-judicial sentencing councils to formulate a comprehensive set of sentencing guidelines. Non-judicial persons also participate in these councils. In England and Wales, the Sentencing Council has two mandatory functions: First, to prepare sentencing guidelines about the discharge of a court’s duties in relation to the reduction in sentences for guilty pleas; and second, to prepare sentencing guidelines about the application of any rule of law as to the totality of sentences. Though the sentencing guidelines are not determinative of individual cases, courts are required to have regard to them.
In the US, the Federal Courts operate on a strict sentencing guideline system. The US Sentencing Commission produces the Federal Sentencing Guidelines, which all federal judges are required to refer to in all cases. The rigid system leaves too little flexibility and room for judges to exercise their discretion. The British model, on the other hand, is more flexible. New Zealand also has an independent sentencing council, whose primary function is in producing sentencing guidelines.
There are several advantages to creating a non-judicial body to formulate sentencing policy. Firstly, it can issue comprehensive guidance on a variety of offenses. These guidelines can help achieve greater consistency and predictability in sentencing. Instead of having to deal with a series of potentially conflicting appellate decisions, sentencers in the lower courts are given a specific framework to operate within. Secondly, it can provide an avenue for a wider field of expertise and experience to share their views. Thirdly, it can perform an advisory role which is not fettered by the appellate process and is not limited by what has been argued by the parties. Finally, it could be said that whatever suggestions/conclusions that emanate from such a body are more likely to be balanced.
The staged process method provides the methodological framework for the operation of the sentencing council. The most basic feature of the staged process method is that judges decide sentences based on structural, sequential reasoning. Usually this requires a judge to first ascertain the objective severity of the offense, to arrive at a presumptive sentence (or range of sentences) before further adjusting to take into account other considerations, in particular offender-specific ones, and to arrive at the final sentence to be passed.
A sentencing council can achieve greater consistency and predictability in sentencing. Though every coin has two sides, we should not exaggerate the disadvantages of the staged process method.
On the minus side, the staged process method imposes unnecessary constraints on a sentencing judge’s discretion, preventing him from taking into account the widely varied and unique individual circumstances of each and every case. In contrast to the staged process method, instinctive synthesis allows sentencing to be made on a highly individualized basis. Hong Kong courts have a blend of features of staged process Aand instinctive synthesis methods. The Court of Appeal (CA) often issues sentencing guidelines or tariff for lower courts. We are familiar with the sentencing tariff on dangerous drugs. But this approach is piecemeal and dependent on appeals being filed. Where there is no appeal, the passive CA will not get an opportunity to provide guidance on a particular type of offense. To cite an example, there is no tariff or guidelines for arson. In HKSAR v Yiu Siu-hong (DCCC 57/2020), the defendant was charged with attempts to throw a petrol bomb with intent. In Hong Kong, there are no previous authorities with similar facts. The Sentencing Guidelines for Public Order Offences in England and Wales provided valuable guidance for the sentencing judge in Yiu Siu-hong to find an appropriate starting point for this particular kind of offense.
A further argument against a sentencing council is that the Executive may manipulate the appointment process and turn the council into a pro-government institution. It has prompted criticism of “a hidden attempt” by the pro-establishment camp to use the council as a Trojan horse to undermine judicial independence in Hong Kong. Without undermining judicial independence, the records of the non-judicial sentencing councils in England and Wales, the US and New Zealand have given these critics a reassuring pat on their shoulders. Before his departure, Geoffrey Ma also gave assurance that local judges would stay true to their oath to hand down impartial ruling.
Before jumping to the conclusion that we should establish a sentencing council, we should have a thorough understanding of the pros and cons of such a body. It hardly needs to be emphasized that a sentencing council can achieve greater consistency and predictability in sentencing. Though every coin has two sides, we should not exaggerate the disadvantages of the staged process method. As mentioned earlier, Hong Kong is not just relying on one sentencing method. Our sentencing courts have successfully blended staged process and instinctive synthesis methods. If there are reforms, the good tradition should be retained. An issue of great concern is that the guidelines issued by the CA are dependent on appeals being filed. The demand for sentencing guidelines far exceeds supply. Reform is necessary. The authors urge patience during the consultation period because the exploratory journey to a better sentencing framework is a complex and time- and resource-consuming exercise. Any constructive discussion should not be tainted by conspiracy theory.
Junius Ho Kwan-yiu is a Legislative Council member and a solicitor. Kacee Ting Wong is a barrister and a part-time researcher of Shenzhen University Hong Kong and Macao Basic law Research Center.
The views do not necessarily reflect those of China Daily.
