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China Daily

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Wednesday, August 21, 2019, 18:41
Let punishment fit crime to uphold public order
By Grenville Cross
Wednesday, August 21, 2019, 18:41 By Grenville Cross

Although large numbers of suspects have been arrested for their alleged involvement in offenses arising from the ongoing protests, many cases are still undergoing investigation. Within the Department of Justice, a dedicated team is providing legal advice, and some very serious charges will undoubtedly be brought in due course. These will be such as to reflect not only the gravity of the crimes committed, but also their diversity.

Apart from the obvious riot charges, the suspects may also expect to be charged with offenses that include arson, wounding with intent to cause grievous bodily harm, false imprisonment, assaulting police officers, criminal damage, possession of offensive weapons, and public nuisance. Some of the attacks, moreover, were so horrendous, as when police officers were set on fire by Molotov cocktails, that prosecutors will also need to consider charging attempted murder.

For suspects arrested in connection with the bomb factories, charges of making or keeping explosives with intent to endanger life or property, which carry life imprisonment, are almost inevitable, evidence permitting.

The reviewing of evidence and the settling of charges will inevitably take time, and prosecutors will wish to be absolutely sure of their ground before settling the indictments.

At some point, however, these cases will be brought to trial, and the judges will finally take control of matters. Many cases, because of their seriousness, will be too serious for trial in the Magistrates’ Court, and will be sent to either the Court of First Instance, where the maximum penalty is life imprisonment, or the District Court, where it is seven years’ imprisonment.

If an accused pleads guilty at an early stage, he or she will receive a reduction in sentence of one-third, partly as a reward for not wasting judicial time, but also as an incentive to other guilty persons not to contest their guilt. However, if the examples of the people charged with offenses arising from the Occupy Central disturbances and the Mong Kok riot are anything to go by, the suspects this time will in all likelihood plead not guilty, thereby delaying things as much as possible. Their day of reckoning will, however, hopefully still come, and the sentences they receive, particularly in the gravest cases, will need to emphasize punishment, with mitigating factors carrying little, if any weight.

As in current circumstances, deterrence is the primary sentencing consideration, it is essential for the courts to impose punishments that not only deter the offender, but also others who are minded to commit the same or similar offenses

When an offender is sentenced for a serious crime, the courts need to consider various factors. These include public protection, commensurate punishment, societal disapproval, deterrence, compensation and the possibility of rehabilitation. The precise weight to be given to the individual factors will inevitably vary, depending on the circumstances of the offense and the situation of the offender.

Although, in earlier public order cases, the courts have sometimes imposed relatively lenient sentences, these appear to have provided little deterrence, and the scope for leniency this time will be greatly reduced, even where the offenders are youthful or of previous good character. After all, many of them will have been involved in what is, in effect, an insurgency, verging at times on outright terrorism.

As earlier sentences have failed to deter the men of violence, the judges will need, through their sentences, to demonstrate that their conduct is intolerable in a civilized society. Although some of the offenders, and their apologists, appear to think they are above the law, the judges should disabuse them of any such notions. They must also demonstrate that political violence is no less reprehensible than other types of violence, and may actually be worse, as where high explosives are manufactured in improvised laboratories in order to endanger people’s lives in public places.

In 2018, when the Court of Final Appeal, with Chief Justice Geoffrey Ma Tao-li presiding, considered sentencing principles in a public-order case related to Occupy Central, and which involved both violence and injury, it emphasized the importance of maintaining public order. In its judgment, the court specifically endorsed the view that “in the circumstances now prevailing in Hong Kong, including increasing incidents of unrest and a rising number of large scale public protests, it is now necessary to emphasize deterrence and punishment in large scale unlawful assembly cases involving violence”. The message, therefore, is unequivocal, and trial judges will be fully justified in future cases in imposing condign punishment upon any offender convicted of serious public disorder, as well as related criminality.

Where, therefore, as in current circumstances, deterrence is the primary sentencing consideration, it is essential for the courts to impose punishments that not only deter the offender, but also others who are minded to commit the same or similar offenses. Since earlier sentences have not deterred the rioters, there will need to be a significant upping of the ante this time.

After all, it is only through the sentences they impose that judges can express society’s abhorrence of particular conduct, and provide the police with the support they need in upholding law and order. Many of the cases, moreover, will fall into the “worst category” of their type, meaning, quite simply, that the judges will be entitled to impose the maximum sentence provided by law, or at the very least to take it as their starting point for sentence. With riot, for example, the maximum is 10 years’ imprisonment, and it is hard to imagine graver instances of riotous conduct than have recently occurred.

Although the ultimate sentences to be imposed must always be just and appropriate, anyone held to account for waging war on society must expect to be imprisoned for a very long time. The judges must protect the community as a whole, and weak sentences inevitably promote lawlessness. It is only through realistic sentencing that the rule of law can be maintained in Hong Kong.

The author is a senior counsel and law professor, the co-author of Sentencing in Hong Kong, and was previously the director of public prosecutions of Hong Kong, China.

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