Unsuitable sounding board for sentencing
I REFER to the story headlined, 'Outrage at lenient sex crime sentence', on the front page of the South China Morning Post of January 13, where you report that an unnamed Queen's Counsel, who was urging a review to see if the sentence imposed by the trial judge could be increased, had said that 'sentences should be in harmony with public opinion'. I am not clear what he meant by this, but the issue is interesting and important. For nearly all offences a maximum sentence of term of imprisonment or fine or both is set by the legislature in the relevant legislation.
Subject to this and to any guidelines that might have been laid down by the Court of Appeal for particular offences, judges have a broad discretion to determine the level of sentence.
If this Q.C. is suggesting that, subject to the above constraints, the judges should be listening to the public in determining the level of sentence beneath the maximum, then I would suggest that (to mix the metaphors) public opinion is an unruly horse to use as the sounding board for sentencing policy.
Hong Kong has abolished the death penalty. Fortunately, in this instance the legislature is probably in advance of, or at least more liberal than, public opinion, for at the moment public opinion would no doubt support the death penalty for all, or some murders, and perhaps for some other offences. Anyway, how would you determine public opinion? The idea is altogether too reminiscent of the so-called people's tribunals dispensing peoples' justice after the French Revolution.
If this Q.C. meant that the maximum sentences should reflect public opinion, again, how in Hong Kong do you determine public opinion? In more democratic societies than ours public opinion can be reflected, to some extent, through the democratic process, viz the law and order platforms of various political parties overseas. In this way the maximum sentences set by the legislation can be influenced by public opinion. But this method does not apply in Hong Kong.
So how do our legislators and their advisers determine the levels of sentences for crimes? How, if at all, does adverse publicity about lenient sentences, such as the report and your editorial on January 13, impact on the judges, both on the Court of Appeal in setting new tariffs from time to time and on trial judges in individual cases? I do not know the answers to these questions, but the Sentencing Research Project being carried out at City University will hopefully answer these questions, and other issues arising out of the sentencing process. I shall report in due course.
Professor E. L. G. TYLER Head of Department Department of Professional Legal Education City University