Checks and balances

PUBLISHED : Thursday, 19 August, 2010, 12:00am
UPDATED : Thursday, 19 August, 2010, 12:00am

Irrespective of whether the Secretary for Justice's application to the Court of Appeal to review the sentence imposed on Amina Bokhary is successful, and whether any of the commentators who have demanded a harsher sentence will have actually read the psychiatric and probation reports, the system of sentencing review contains its own safeguards.

Sentencing is not an exact science. In arriving at a correct sentence, a court has to weigh up various factors and decide which has the greatest relevance in all the circumstances. The classical principles of sentencing involve retribution, deterrence, prevention and rehabilitation, and the court must decide which of these to apply in the particular case, and how. Sentencing is rarely the straightforward exercise that some suggest; competing factors have, where possible, to be reconciled. Leniency of itself is not a vice and, where the facts justify it, leniency is to be commended, not condemned.

Sometimes the seriousness of the offence requires a deterrent sentence. On other occasions there may be strong mitigating factors, which justify a sentence well below the norm. If the undisputed evidence is that a defendant suffers from a mental disorder and lacks effective powers of reasoning or control, the emphasis may need to be placed on help and rehabilitation rather than on punishment and deterrence. The court which sentences an offender has heard the evidence and knows the aggravating and mitigating factors, and is usually best placed to determine the sentence. It has the 'feel' of the case, and this should be respected.

There are sometimes strident demands for the courts to pass severe sentences on particular defendants. An important function of criminal law is to assuage the feelings of those affected by crime, and undue leniency can undermine respect for the system. The courts must therefore provide sound reasons for sentencing decisions, not least because this can help to guide public opinion. Former chief justice Ti-liang Yang once said that although a judge should not insulate himself from public sentiment, 'he must not be influenced, let alone be dictated, by them'. The same is true of prosecutors, who must do what is right, regardless of outside pressure or criticism.

The right of the prosecution to seek a review of sentence is sparingly used. The exercise of judicial discretion is not to be challenged every time a prosecutor or investigator wants a higher sentence, which is not uncommon. A defendant should not have to face the anxiety of being sentenced a second time in the absence of some very strong reason. The Court of Appeal itself has stressed that 'the power of review was conferred to correct errors in exceptional cases'. That a sentence is less than what the appeal court would itself have imposed is not necessarily a sufficient basis to alter a sentence.

Although the Secretary for Justice may seek a review of sentence, the Court of Appeal has stated that it will prevent encroachment on the discretion of the courts to impose a sentence as lenient as they think fit, provided it is reasonable. An application for review can therefore only properly be made after the court's reasons for sentence have been examined, the mitigation has been assessed, and the relevant law has been considered. Only then can the prosecution make an informed decision on the adequacy of the sentence. The charges, of course, must also be proportionate to the criminality.

Judges are not infallible, and mistakes sometimes occur. Errors, if serious, need to be rectified. Such cases are, however, the exception, not the rule.

If the Court of Appeal grants the prosecution leave to seek a review of Bokhary's sentence, the court will need to decide if the probation order will facilitate her rehabilitation, or if the public interest requires a deterrent sentence. Regard will undoubtedly be paid to her mental condition at the time of the incident as well as to her criminal record, and also to the magistrate's reasoning.

Britain's former Lord Chief Justice Geoffrey Lane once said the proposition that mercy should season justice is 'as soundly based in law as it is in literature', and this is also invariably kept in mind by judges when sentences are challenged on review.

Grenville Cross SC, the former director of public prosecutions, is the sentencing editor of Archbold Hong Kong, and the co-author of Sentencing in Hong Kong