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International Criminal Law Conference

Sentencing offenders: maintaining public confidence in criminal justice

The Chief Judge of the High Court, Mr Justice Jeremy Poon Shiu Chor

2 November 2021

Secretary for Justice, fellow speakers, distinguished guests, ladies and gentlemen,

1. Good morning. It is a great pleasure to address you on this important topic – Sentencing offenders: maintaining public confidence in criminal justice. This session provides an excellent forum for us to review the public interest considerations underlying sentencing and the sentencing principles the courts adopt in Hong Kong; and based on those considerations and principles, to explore possible enhancements to the current sentencing regime.

2. To kick-start the session, I will first examine what public confidence entails in the context of sentencing. That is one of the most fundamental public interest considerations underpinning sentencing. I will then deal with the difficult subject of sentencing young offenders for serious offences. That is a most daunting task judges have to grapple with. Lastly, I will say something about public debates on sentencing. As will be seen, if properly conducted, public debates will help strengthen public confidence in sentencing.

Sentencing and public confidence

3. Sentencing and public confidence in the administration of criminal justice are inextricably linked. And rightly so. I will presently turn to their relationship. But let me first explain the true meaning of public confidence for the due administration of justice.

4. It is universally acknowledged that an essential condition for an independent judiciary is public confidence. An eminent jurist once observed: “The court’s authority – possessed of neither the purse nor the sword – ultimately rest on sustained public confidence in its moral sanctions.”1 This means public confidence that judges dispense justice strictly according to the law and always within the framework of the law. It means public confidence that judges adjudicate cases fairly, impartially, with equal treatment of all parties and without any real or perceived conflict of interest or bias. It means that judges do not express his own personal views on matters coming before them or allow them to influence him in the judicial process. Ensured by such confidence, the public recognizes the legitimacy of judicial decisions, even if it disagrees with them.

5. However, the need to ensure public confidence does not mean the need to ensure popularity. It does not mean following popular trends or public opinion polls. It does not mean pleasing the public or bringing about a result that the public desires. That said, judges do not live the lives of hermits. They are part of the society. In performing their judicial role, it would not be right for judges to ignore the will of the public. In particular, as will be elaborated, in terms of sentencing judicial decisions should strive to reflect legitimate public expectations.

6. Turning to sentencing, it is axiomatic that the public has a legitimate interest in it. Concern for crime is as old as society. The maintenance of peace, order and security is one of its oldest functions. Those who have transgressed the law should be properly dealt with. In modern times, the task of imposition of penal sanctions is entrusted to the courts. Sentencing by the courts is therefore a matter of legitimate interest to the public and has a significant impact on public confidence in the due administration of justice. As was observed by the High Court of Australia:2

“Public responses to sentencing, although not entitled to influence any particular case, have a legitimate impact… Judges are aware that, if they consistently impose sentences that are too lenient or too severe, they risk undermining public confidence in the administration of justice and invite legislative interference in the exercise of judicial discretion. For the sake of criminal justice generally, judges attempt to impose sentences that accord with legitimate community expectations.”

7. Sentencing by the courts must therefore serve to promote and not to undermine public confidence in the due administration of justice. Judges must firmly bear this in mind when sentencing. In practical terms:

  1. Judges must correctly apply the sentencing principles to the facts. They must consider the gravity of the crime and carefully analyze the circumstances in which it was committed. They must identify the applicable sentencing factors, such as punishment, retribution, deterrence and rehabilitation, and accord proper weight to each of them. They must also give due regard to the personal circumstances of the offender as appropriate.
  2. The sentence imposed must be proportionate in the overall circumstances of the case.
  3. The sentence must be pronounced in open court. It must be intelligent, transparent and certain. The reasons for sentence are sufficiently articulated. In terms of consistency, judges should follow sentencing tariffs or guidelines, if any.
  4. Judges must always act independently and impartially and be seen to be so. They must not enter into political or societal debates or be seen to be doing so. They must not allow their personal beliefs or views on political or societal issues to affect the sentencing process or be seen to be doing so. They must not express any views that may reasonably give rise to a perception of bias or conflict of interest.

8. Apart from judges, prosecutors also have an important role to play in maintaining public confidence in sentencing. In one the recent sentence reviews, the Court of Appeal reiterated the well-established common law principle that a prosecutor has a duty to assist the court to arrive at an appropriate sentence but he should not say anything that could be taken as advocating severity.3 For as a minister of justice, a prosecutor has no interest in securing severe sentence. He serves the public interest in sentencing on his part by assisting the court to have access to all available and relevant matters which may affect sentence and by assisting the court to avoid from proceeding on any error of fact or law.4

Sentencing young offenders for serious offences

9. I next come to sentencing young offenders for serious offences.

10. Young offenders who have committed serious offences present particular difficulties in sentencing. It is notoriously difficult to strike the balance between appropriately punishing such offenders, deterring them from reoffending and other young people from following suit, but at the same time providing an opportunity for rehabilitation so that they may be constructively reintegrated into society, which is the best form of crime prevention.

11. Sentencing young offenders for serious offences can also very easily give rise to heated public debates and even controversies, as we have witnessed in some high profile cases arising from the recent social unrest. In dealing with the reviews of sentence from those cases brought by the Secretary for Justice, the Court of Appeal took the opportunity to reiterate the general principles for sentencing young offenders for serious offences. Those general principles accord with the spirit of the United Nations Standard Minimum Rules for Juvenile Justice, also known as the Beijing Rules.

12. Briefly stated, the sentence must be commensurate with the seriousness of the offence and circumstances of the case, taking into account the purpose of public protection, societal disapproval and deterrence. Youth is always a mitigation factor, due to the public interest in rehabilitating young offenders. The courts must carefully balance all relevant sentencing factors to determine the weight accorded to each of them. Providing the opportunity for rehabilitation does not mean focusing on the factor of youth to the exclusion of other sentencing factors. The weight given to the youth factor depends on the seriousness of the offence and circumstances of the case. Where as a matter of public interest the seriousness calls for a deterrent sentence, other mitigating factors may pale into significance as the need for a punitive or deterrent sentence would outweigh rehabilitative needs of the offender. That said, imprisonment must always be the last resort where no other sentencing options is considered appropriate.

13. The clear and authoritative guidance provided by the Court of Appeal to the lower courts help ensure consistency in sentencing young offenders for serious offences. They also help remove misunderstanding in the sentencing process and restore public confidence in that regard.

14. Dealing with young offenders who have committed serious offences is a continuing challenge. And I am not confining myself to the recent social unrest cases. I must stress that the challenge is not for the courts alone but for the community as a whole. It requires concerted efforts from all relevant stakeholders so that the heavy social and personal costs of having those young offenders sucked into the penal system can be avoided.

Public debates on sentencing

15. I now come to the final subject that I will touch upon this morning.

16. In the past couple of years, there are vigorous debates in our society on the judicial role in relation to sentencing. Because of the immense public interest involved in sentencing, such debates are entirely legitimate. They should be welcome as a healthy phenomenon too. For they help promote a better understanding and appreciation of the sentencing approach, the sentencing principles, the sentencing factors, and the difficulties which confront the courts in deciding the appropriate sentence. In turn, they help enhance the public confidence in sentencing and may give impetus to possible reform where it is due.

17. Any debate on sentencing must of course be properly conducted. It should be reasonably informed in that the participants should at least have some basic understanding of the practice and principles involved. It should be based on fact and not fiction. It should concern with general levels of sentence rather than individual sentences. It should not be fuelled by tendentious, inaccurate or sensational reporting. Most importantly of all, it should be apolitical. It would be a serious blow to the administration of criminal justice if sentencing were to be influenced, tainted or, even worse, dictated by political considerations. In this regard, the public should be reminded that the courts will resist any attempt to include political considerations in the judicial process. As the Court of Final Appeal recently said:5

“It is not the role or function of the courts of the Hong Kong Special Administrative Region to enter into this or any other political debate. Instead, the duty of the courts is, through an independent judiciary, to administer the law of the HKSAR, including the Basic Law, and to adjudicate on the legal issues raised in any case according to the law. In reaching a decision in any given case, a court exclusively applies the applicable legal principles to the relevant facts and thereby reaches a decision on the appropriate disposition of the case, explaining its reasons in its judgment.”

18. In debating the merits or otherwise of a particular sentence, the public must recognize that judges must do what is their duty, which is to determine what it is the correct sentence irrespective of the criticisms it may arouse. It is the judge who will know all the facts and have the training and experience to enable him to determine what is the most appropriate sentence in all the circumstances and his decision should be treated with the appropriate respect because of this, although some may disagree with it.

Conclusion

19. I would like to end my speech on this note. Sentencing is a formidable judicial task and challenges will continue to arise. But judges in Hong Kong do not shy away from them. We will strive to maintain public confidence in criminal justice by continuing to discharge our judicial function in sentencing conscientiously, dutifully, in full accordance with the law, honestly and with integrity, without fear or favour, self-interest or deceit.6

20. It only remains for me to thank the organizers of this conference for all their hard work and to thank all of you for your kind attention this morning. I wish this conference every success.

1 See Barker v Carr, 369 U.S. 186, 267 (1962), Frankfurter J.

2 Markarian v R [2005] HCA 25, at [82], McHugh J.

3 Secretary for Justice v CWC [2021] HKCA 166, at [14]-16], Poon CJHC; applying Attorney v Jim Chong-shing [1990] 1 HKLR 131.

4 For a more detailed statement of the role of the prosecutor in sentencing, see The Prosecutor Code 2013, Department of Justice, at §21.1.

5 Secretary for Justice v Wong Chi Fung (2108) 21 HKCFAR 35, at [5].

6 See the Judicial Oath, Oaths and Declarations Ordinance, Cap 11, Law of Hong Kong.