Service for society

PUBLISHED : Thursday, 30 September, 2010, 12:00am
UPDATED : Thursday, 30 September, 2010, 12:00am

Since their introduction in Hong Kong courts in the 1980s, community service orders have become a vital instrument in the sentencing of defendants, and have helped to rehabilitate offenders from all walks of life. Courts can sentence offenders to perform unpaid work of up to 240 hours for the community in a non-custodial environment. Such work may be arduous, and it aims to achieve justice through a combination of punishment, reformation and rehabilitation. Administered by the director of social welfare, community service may be imposed in place of, or in addition to, any other sentence the court thinks appropriate.

Some defendants are clearly so dangerous and their crimes so serious that imprisonment is inevitable. Those who traffic in dangerous drugs, molest children or rob banks have no realistic prospect of being sentenced to perform community service.

But many crimes do not fall into the very serious categories. In these cases, a community service order has a constructive dimension. If successful, it lessens the chances of a defendant re-offending.

The defendant ordered to perform community service may be required to work in hospitals or for charities. He or she may have to work with old, infirm or handicapped people, or undertake manual labour at schools or childcare centres, or even teach English. Such activities are intended to be therapeutic and character-building, and are a means by which the offender can serve the society he has wronged. In a nutshell, the scheme enables the defendant to make reparation for his crime.

Not all defendants qualify for a community service order. A court will usually need to be satisfied that the offender is remorseful and of good character; has a good work record and a stable home background; has a job or good prospects of a job; and does not present a serious risk of re-offending. Many defendants will be unable to meet these criteria, and community service will simply be excluded as an option.

It is unfair to depict the community service order as an inadequate response to serious crime. A community service order is clearly a softer option than imprisonment, but that does not mean it ought to be dismissed as a soft touch. The performance of community service is an effective means of impressing upon a defendant that crime does not pay, and one which compels him to perform personal service for the public good. Society is the winner if the defendant is rehabilitated and sound work is achieved. England's former chief justice Lord Woolf once said that, in appropriate cases, 'it can be better that an offender repays his debt to society by performing some useful task for the public than spending a short time in prison'.

Properly viewed, the community service order is an effective alternative to imprisonment. The use of community service in a particular case does not in any way diminish the seriousness of the offence, but recognises instead that a custodial sentence is not necessarily the answer to each and every breach of the criminal law.

Some people think that imprisonment is the answer to most offences, and that locking up more defendants will keep society safer. This, however, overlooks the real advantages to society of keeping offenders, particularly young offenders, out of prison and away from involvement with the wider criminal fraternity. This may not always be possible, particularly when the public interest requires a deterrent sentence. But the courts must have the courage to explore the viability of community-based alternatives to custody.

Once sentenced to undergo community service, a defendant must fully comply with the order and also behave himself, or face the consequences. If he fails to observe the requirements of a community service order, he may be fined. If the breach is grave, or if he commits another offence, a court may revoke the order, and sentence him again for the original offence. The defendant, therefore, has a Sword of Damocles hanging over his head, and this can be salutary. Former High Court judge Graham Jackson once called this 'a powerful incentive for the offender to comply fully with the order and an equally powerful disincentive to offend again'. That most defendants comply with the requirements and do not re-offend while they are subject to the order is testament to the efficacy of the scheme.

The community service order has proved itself to be an effective sentence of genuine utility. It can be administered at a fraction of the costs needed for a sentence of imprisonment, and because of the requirement of supervised work it has an advantage over other non-custodial sentences, such as probation or suspended sentences of imprisonment.

Since community service has an impact on the defendant that is both punitive and rehabilitative, it is quite wrong to suggest that, because of the order, he has somehow escaped his just deserts or that society has been denied its pound of flesh. In its own distinctive way, the community service order is more than capable of delivering justice and ensuring that the punishment imposed upon the defendant fits the crime.

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