Review will help ensure justice is seen to be done

PUBLISHED : Saturday, 07 August, 2010, 12:00am
UPDATED : Saturday, 07 August, 2010, 12:00am

The Department of Justice is right to have lost no time in announcing that it will now apply to the Court of Appeal for a review of a light sentence on Amina Mariam Bokhary, niece of a top judge. Otherwise a magistrate's reasons for rejecting a request yesterday to send her to jail would have only ensured that controversy over the case would have intensified over the weekend.

That is not to dismiss the concerns about Bokhary's psychiatric condition raised by magistrate Anthony Yuen Wai-ming in refusing an application for a review of a non-custodial sentence. Rather it is because of continuing public disquiet over other reasons he gave for leniency during sentencing last Monday.

Yuen sentenced Bokhary to a year's probation after she was convicted of careless driving, failing to take a breath test and assaulting a police officer. That was her third conviction for assaulting police. He noted that the last two were serious offences that usually called for immediate custodial sentences. However, he also said: 'But ... the defendant has a good background, a well-off family, good education and outstanding academic achievement.' He said she had a first-class honours degree in business administration. 'And most importantly, [she] has caring and concerned parents.' He added that 'unlike other criminals, you're not a bad person but a sick person ... with limited insight into your illness'.

Granted, it would have been wrong of Yuen not to have taken her mental state into account, given that he had been told that Bokhary suffered from bipolar disorder that she tried to control with alcohol. He expanded on those concerns yesterday in declining to change the sentence.

Bokhary's relationship to permanent judge of the Court of Final Appeal Mr Justice Kemal Bokhary is neither here nor there. But in the light of this the public has a right to expect the magistrate to show clear and logical reasoning about mitigating factors if it is to be assured that leniency is objective.

In context, his references to her advantages of background, family and education have been taken by some to imply that someone who lacks them might therefore expect to be given an immediate custodial sentence. That is unfortunate. The rule of law is the foundation of Hong Kong's freedoms and way of life. Equality before the law is enshrined in the city's mini-constitution, the Basic Law. Perceptions to the contrary do nothing to uphold respect for the law. It is not unusual for judges and magistrates to taken into account a stable family background in deciding whether the objective of rehabilitation, and society's best interests, would be better served if offenders were spared a jail sentence.

Yesterday Yuen maintained that these ends would be more likely to be met if Bokhary received proper treatment under the supervision of a probation officer. In this respect a supportive family is, indeed, a relevant consideration.

That said, the Department of Justice did not seek a review because of Yuen's controversial remarks. Deputy Director of Public Prosecutions Kevin Zervos argued that the sentence was manifestly inadequate - a view shared by senior and junior police officers' representatives - and wrong in principle. He added that Bokhary had re-offended after having previously being given a chance for rehabilitation, and had shown no remorse.

Given public concern, the decision to apply to a higher court for a review of the sentence will help ensure that justice is seen to be done.