Victim support
If it is to succeed, the criminal justice system needs the fullest co-operation of the victims of crime. Victims must, therefore, from the outset of their cases to their conclusion, receive the support of the police, prosecutors and courts. If victims do not report crime, or if they decline to testify against suspects or otherwise refuse to assist the authorities, offences may go undetected and offenders might escape punishment.
There was, until quite recently, a tendency to treat crime victims as if they had little more than a walk-on part in criminal proceedings. Fortunately, this has now changed. In Hong Kong, the 'Victims of Crime Charter' requires the various agencies that process criminal cases to treat victims with respect, and to uphold their rights. These include the rights to be treated with courtesy, to information on the progress of cases, to privacy and confidentiality, and, crucially, the right to be heard.
However, although the charter requires prosecutors to 'bring to the attention of the court the circumstances and views of the victim whenever appropriate', there are strict limits on the extent to which the courts can act on the views of the victim when they sentence offenders.
In Hong Kong, as in England and Wales, the courts consider that the views of the victim are not usually relevant to sentence, regardless of whether the victim wants severe punishment for the defendant or is prepared to forgive. A sentence cannot be adjusted to reflect the views of the victim, as there has to be an overall consistency of approach by the courts towards sentences for particular offences. A wide fluctuation in sentences for offenders who are guilty of the same or similar criminal conduct, and attributable to the personal whims of particular victims, is not something the courts wish to countenance.
A judge, after all, has to take a wide view of the offence and the offender, and decide what is an appropriate sentence in both the public interest and the defendant's interest. If the offence is grave, perhaps involving violence, a deterrent sentence may be necessary to make clear that society will not tolerate such conduct, notwithstanding that the victim wishes to minimise the penalty. If, however, there are powerful mitigating factors, which justify the passing of a lesser sentence, the judge must impose the sentence he or she believes to be just, even if this upsets the victim.
When there is domestic violence, it is not uncommon for the victim to forgive the offender. A wife who is harmed by her husband, for example, may be keen to forgive him. However, forgiveness does not mean that a defendant can simply walk away from the consequences of the offence.
Victims, of course, sometimes want retributive justice, of the eye-for-an-eye variety, and this is understandable, but, again, the courts will usually be unable to oblige. While the courts may give full weight when sentencing to the impact of the offence on the victim, they cannot tailor the sentence to reflect the victim's desire for vengeance. Severe offences, will, of course, often attract condign punishment, but, as England's chief justice Lord Judge once noted, even when a victim is bent on revenge, 'the punishment cannot be made longer by the court than would otherwise be appropriate'.
This approach, however, is by no means universal. In mainland China, for example, under the sentencing guidelines which the Supreme People's Court promulgated in October last year, the victim can, in some circumstances, influence the sentence. If a defendant pleads guilty, he or she will receive a sentence reduction of 40per cent, and this can be topped up by a further 20per cent if the victim has expressed forgiveness for the wrong that has been suffered. The attitude of the victim, therefore, is crucial in the assessment of sentence, and must be ascertained before sentence is passed.
Under Islamic law, retributive justice is enforced by the courts on the defendant, and the victim helps to decide his or her fate. If the victim decides to forgive or accept compensation for the crime, the policy of qisas, or strict retribution, is not enforced. In a recent case in Iran, for example, Ameneh Bahrami, who was blinded by a man after she refused his offer of marriage, forgave him, and the sentence of the court - that he also be blinded - was commuted.
Common law jurisdictions, however, see things very differently, although their courts must always be careful to maintain public confidence in the ability of the legal system to deliver justice to the victims of crime.
The sentences of the courts should normally be such as to acknowledge the gravity of the offence. If lenient penalties are to be imposed, which may cause anguish to victims and their relatives and friends, very clear reasons need to be given. The demoralising effects of crime must always be borne in mind by judges, and the sentences passed should be proportionate to the harm done.
Where possible, sentences are required that will assuage the feelings of those affected by crime. If there is undue leniency, there may well be a severe backlash. As former Court of Appeal judge, Sir Alan Huggins, once explained, society has 'transferred to the courts the duty of ensuring that punishments are not so lenient that the victims or relatives will be tempted to take the law into their own hands'.
Grenville Cross SC, the sentencing editor of Hong Kong Cases and Hong Kong Archbold, is the co-author of Sentencing in Hong Kong. This is an abridged version of his address to the College of Criminal Justice, China University of Political Science and Law, Beijing
