Gilbert and Sullivan's Mikado was in no doubt as to the purpose of punishment. 'My object all sublime,' he said, 'I shall achieve in time, to let the punishment fit the crime.' Sentencing, alas, is rarely quite so simple, and the punishment must also fit the criminal.
Judges and magistrates sometimes say that, in comparison with the sentencing of the offender, the trying of him is easy. In sentencing, judicial discretion is wide and various factors may pull in different directions. The courts are sometimes met with calls to impose severe penalties, and the whole process disturbs social harmony. Amina Mariam Bokhary, for example, was sentenced to probation for assaulting a police officer, and 300 people took to the streets to demand that she receive condign punishment.
Although the courts must not be stampeded by public outrage into imposing draconian sentences, they need to ensure that the penalty is not so lenient as to tempt the victim and his or her relatives to take the law into their own hands. While undue harshness in the sentencing of an offender may not advance the interests of justice, undue leniency can undermine respect for the legal system.
When sentencing an offender, the court must fully assess the offence and the circumstances of its commission. Regard must also be had to the situation of the offender, and to the reasons the crime was committed. The public good is also relevant, and England's former chief justice Lord Bingham has spoken of the need 'to prevent the offender from reoffending and to deter others from offending in the same way and a need to protect the public'.
The functions of sentencing include the punishment of the offender, his or her reform, the reduction of crime, the protection of the public and the making of reparation for loss. It is not easy for a court to achieve a sentence that can satisfy all these objectives. There will, in any event, always be a hard core of offenders who will never renounce a life of crime, although a high detection rate and a harsh sentencing policy may at least give them pause for thought.
The imprisonment of the offender is the obvious means by which the court can show its disapproval of serious crime, and hopefully deter potential criminals. While imprisoned, the offender is out of circulation, and society is protected.
In many situations, however, alternatives to imprisonment may also have the desired effect. In 2002, for example, after Canto-pop star Nicholas Tse Ting-fung was convicted of conspiring to pervert the course of public justice, some people wanted to see him locked up, but he received instead a community service order of 240 hours, requiring him to perform useful work for society in a non-custodial environment, and this proved to be salutary.
If the underlying problems associated with an offender's criminal propensities can be addressed, this may benefit society. Rehabilitation, crime prevention and public protection are inter-related, and if a dangerous criminal is reformed, an obvious threat to society is neutralised. Imprisonment, inevitably, has its limitations, although it is sometimes unavoidable.
If the offender is dangerous, imprisonment may be necessary to protect the public, as with the armed robber. In 1999, Yip Kai-foon was sentenced to 36 years and three months' imprisonment for a spate of serious crimes which the Court of Appeal said came very close to a declaration of war on society, and which required 'heavy deterrent sentences'.
If the crime is so grave that the sentence must reflect public abhorrence, imprisonment may be essential, as with the drug trafficker. In 2008, the Court of Appeal decided that if an offender trafficked in over 1,000 grams of the drug Ecstasy, a sentence of imprisonment of at least 14 years would be appropriate.
If a new type of crime appears, imprisonment may be required to 'nip it in the bud'. In 1991, the Court of Appeal, in light of the increase in the number of indecent assaults on female passengers on the MTR, decided that in future first offenders should normally be imprisoned for between 14 and 28 days, and that henceforth people 'who contemplate such action must fully realise where their conduct will bring them'.
Although imprisonment punishes the offender and keeps him off the streets, the rates of recidivism in Hong Kong are quite high, albeit lower than in most Western countries. This, however, is not wholly the fault of the system, and may be a consequence of insufficient family support for the released prisoner, an inability on his part to secure a decent job and a lack of determination to stick to a regular life.
If greater funding were to be provided by government for post-detention services, and if private corporations were to supply more job opportunities, this would undoubtedly facilitate the successful reintegration of the former prisoner into society.
Every incentive is required in terms of encouragement and opportunity for those who genuinely wish to turn over a new leaf, and the community should ensure its fullest support of such people.
Grenville Cross SC, is sentencing editor of Hong Kong Cases, and co-author of Sentencing in Hong Kong. This is an abridged version of the Sir TL Yang Society's Individual, Community and the Law Lecture 2011, which he will deliver today at the Chinese University of Hong Kong