Lawyers in favour of plea bargains

PUBLISHED : Friday, 02 August, 1996, 12:00am
UPDATED : Friday, 02 August, 1996, 12:00am

Plea bargaining of the kind used in the Wong Kwai-nam threats case is widespread and the practice should be encouraged, leading lawyers said yesterday.

There was even support for the process to be extended to deals with judges on the sentences they will pass.

Private negotiations frequently take place between prosecution and defence barristers to save the time and expense of a trial by obtaining a suitable guilty plea.

In the past, public concern has been expressed over the concept of compromising with criminals.

Striking a deal means the defendant will escape trial on some charges and often results in the prosecution accepting guilty pleas to less serious allegations.

But lawyers say the bargaining sessions are a sensible way of avoiding unnecessary trials and arriving at the right result.

It is usually the defence which raises the possibility of a deal after spotting that the prosecution case is stronger on some charges than others.

After consulting the defendant, a proposal will be put forward that the weaker cases be dropped in return for guilty pleas being entered on the stronger ones.

Discussion between the barristers follows until an agreement is reached.

Lawyers say the practice of putting details of the agreement into writing, as happened in the case of Wong, is unusual and could lead to problems if either side wishes to change its mind.

One senior barrister believes the bargaining system should be extended in certain cases so barristers could bring the judge into discussions.

This move towards the system used in America was considered desirable by a number of judges in Hong Kong, he added.

'There are some cases where this approach may well be in the public interest,' the lawyer said.

But senior law lecturer Dr Nihal Jayawickrama warned against such a move.

'The matter of sentencing should be left entirely to the discretion of the courts. I would not advocate the American system,' he said.

An English Court of Appeal decision in the 1970s strongly discouraged plea bargaining on sentence.

This was later confirmed by the appeal court in Hong Kong and it has rarely been adopted in the territory.