Infection risk cuts options for sentencing
Criminals may be getting lenient treatment
Courts may be handing down more lenient sentences to convicted criminals because the number of places available on work placement orders has dropped drastically due to the Sars outbreak.
The work includes such tasks as painting and carpentry in schools or charitable institutions, and service work such as visiting homes for the elderly and hospitals, and running game stalls.
But many schools, homes for the elderly and hospitals have been temporarily closed and there are concerns that convicted criminals working in such places might be at risk of being infected by Sars.
Some magistrates have deemed it 'undesirable' to give criminals community service orders and are instead handing out fines.
A senior magistrate told the Sunday Morning Post that he had recently given convicted criminals normally deemed suitable to serve community service orders (CSO) alternative, lighter sentences, such as a fine or a probation order, because he could not be satisfied enough community service placements were available.
'The defendants could be better off because I could not simply send them to jail,' the magistrate said. 'Sometimes I consider justice might not have been achieved, but this is no fault of the defendants and you have to find the fairest way of avoiding prejudice against the criminals.'
On May 16, Eastern Court magistrate David Dufton was hampered from considering a CSO when sentencing a fraudster who picked up a winning Mark Six lottery ticket in a betting centre and cashed it in for more than HK$500,000 because, he said, 'CSO regrettably is not available because of atypical pneumonia'. The fraudster was jailed for 14 days but released immediately after deducting the time spent in custody.
CSOs are administered by the Social Welfare Department's probation service and were first introduced in January 1997. The scheme is deemed a 'rehabilitative measure' which requires people of or over 14 years to perform unpaid public service not exceeding 240 hours within a year. The ordinance stipulates that the order can be imposed only when a person is convicted of an offence punishable by imprisonment.
Ivy Kwong Wing-han, social work officer (community service orders office) of the Social Welfare Department, said the number of work placements had decreased by 60 per cent in April due to Sars.
Ms Kwong said the situation had improved since schools were reopened recently. Overall, about 30 per cent of work placements had been suspended.
She said 95 offenders, about 10 per cent of the monthly cases, were waiting for work placements.
The courts have been informed of the situation. This has prompted Chief Magistrate Patrick Li Hon-leung, in an internal e-mail sent on April 30, to urge his colleagues to consider other sentencing options.
'To pass community service orders with no work available is undesirable and is creating all sorts of problems. You may like to consider other options, bearing in mind that there is no fault on the part of the defendants,' he wrote.
Another magistrate said the e-mail was not a guideline but highlighted the fact that CSO was currently not a practical option. Defendants might have to wait months to start serving the order. Others might not be able to serve all the hours within 12 months.
However, a judiciary spokesman said CSO remained a sentencing option.
'There is nothing preventing a magistrate [and judges] ordering CSO. It is the independent judgment of the magistrate on the advice of the probation officer.'