The youth of a nation,' said Benjamin Disraeli, 'are the trustees of posterity', and the sentencing of young people who commit criminal offences poses a particular challenge for the courts.
If the offender is a young person under the age of 21, it is not always easy for a court to reconcile the competing demands of punishment and reform, although society is usually best served if rehabilitation is treated as a prime sentencing consideration. Court of Appeal judge Peter Cheung Chak-yau has noted that 'the international community agrees that the well-being of the juvenile should be the guiding factor in sentencing', and any court that treats a young offender as it would an adult is in error.
A sentence of imprisonment will normally be inappropriate if the young offender can suitably be dealt with in another way, and traditional notions of punishment are of only limited relevance in dealing with a youngster. Retribution and deterrence will usually have at most a secondary role to play. The court's focus will instead be, wherever practicable, on diverting the offender away from a life of crime, and there are sound policy reasons for this approach.
The young offender is often immature and gullible, and easily led astray by others, and may not appreciate the gravity of the crime or its consequences. A sentence that has the effect of sucking him or her ineluctably into the criminal process may be counterproductive, and less salutary than a sentence that promotes reformation. If a young person receives a sentence that encourages him to review his conduct and to change his outlook, this will benefit society. Various options aim to achieve this.
Whereas the training centre teaches the young offender a trade, and how to lead a law-abiding life, the rehabilitation centre places its emphasis on personal discipline, regular living patterns and psychological counselling. The success rates of both institutions are impressive. The young male offender who requires strict disciplinary training may receive treatment of the 'short, sharp shock' variety in the detention centre, and recidivism rates for former inmates are low. A very young delinquent may benefit from the reformatory school, which combines traditional teaching with prevocational training in a relaxed environment.
England's former chief justice Lord Goddard once said that a judge who sends a young person to prison for the first time 'takes upon himself a grave responsibility'. The courts, however, sometimes have no choice but to impose imprisonment, and the offender's youth may have little impact if the offence is grave or prevalent. The young robber or drug trafficker, for example, may have to be imprisoned, even for a substantial term, to deter others of a like mind. It would, in any event, play directly into the hands of the criminal masterminds if they felt they had only to recruit young people in order to outwit the system, and the public interest requires that serious crime attracts condign punishment, youth notwithstanding.
In the case of violent crime, age is of little relevance unless the offender is very young, which usually means under the age of 15. Although it may be hard for a judge to imprison a youngster, this is sometimes in the best interests of the community. Court of Appeal judge Frank Stock, in a case of armed robbery, said it is sometimes necessary for judges to send an unequivocal message to youngsters that they must expect 'little quarter from the courts when it comes to the commission of such serious offences, especially when guns are carried and used in the commission of crime', and this message has been received by offenders of both sexes.
In 2009, official statistics show that 613 young offenders were imprisoned, comprising 388 males and 225 females. Once inside the facility, however, the Hong Kong Bill of Rights requires that 'juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status'. Every effort is made by the authorities to ensure that the adverse consequences associated with imprisonment are minimised, and that the development of the young person proceeds apace, albeit within the prison confines.
Hong Kong's sentencing system is enlightened, and it has developed in a way that respects international benchmarks. It is reassuring that most young offenders are diverted away from imprisonment, and that when this is unavoidable the courts lean over backwards to keep the term as short as they can. Youngsters are treated as humanely as possible while incarcerated, and this helps to keep alive their hopes for the future.
Although full weight is always given to youth as a mitigating factor, this does not mean that the courts are soft on juvenile crime, or that they are unaware of the importance of maintaining public confidence in the criminal justice system. Imprisonment, rather, is a sanction of last resort, and alternatives to imprisonment may be the most effective means of dealing with the delinquent of tender years. Society, after all, has no greater interest than that a wayward youngster is enabled to turn over a new leaf.
Grenville Cross SC is sentencing editor of Hong Kong Cases and Hong Kong Archbold, and co-author of Sentencing in Hong Kong