Find alternative to custodial remand

PUBLISHED : Tuesday, 17 April, 2012, 12:00am
UPDATED : Tuesday, 17 April, 2012, 12:00am


The presumption of innocence is fundamental to our system of justice. When it comes to release on bail for people accused of crimes, however, the principle has to be weighed against the interests of justice and the community. As a result, many accused are deprived of their liberty before they are found guilty of anything. In Hong Kong, lawyers and human rights activists have raised concerns that the average time people are locked up before their cases are completed increased by a third to 80 days in 2010 from 60 days in 2008, according to the latest statistics. Understandably, the average figure has prompted the expression that justice delayed is justice denied.

Where a court deems that someone is a potential threat to society, is violent, is a flight risk or has the potential to interfere with witnesses, there can be no alternative but to remand them in custody. However, in many cases where the prosecution opposes bail, the issues are not that clear cut. Given that opposition to bail implies a presumption of guilt by the prosecution and police - otherwise they would not be prosecuting - a magistrate or judge needs to strike a careful balance between the rights of the accused and the public interest.

Not surprisingly, critics have drawn a connection between the increasing time spent in custody by people on remand and the city's shortage of judges. The judiciary told a recent meeting of a Legislative Council panel that nearly a quarter of the city's positions for judges and magistrates had been vacant for nine months or more. At least partly as a result, the average waiting time for a criminal case to be heard in the High Court rose to 53 days last year from 50 in 2010, and for a civil case to 117 days from 89 days in 2010.

Delays do not end there when a judgment is still to be delivered. After queueing a long time for a trial, parties can wait a considerable time again. This newspaper commented at the time on the need to address this by stepping up the training of magistrates to prepare them to move up the ranks and to do more to promote the judiciary as a good career move. It has since emerged that half of all top-tier judges will reach retirement age of 65 over the next five years. The government can buy time by extending judges' terms of office, but the greying of the judiciary adds urgency to the need to address court delays.

Incarceration while awaiting trial can be a traumatic experience, including intimate body searches every time a prisoner is returned after a court appearance. As well as seeing that the judiciary is adequately funded for the manpower it needs to deliver timely justice, the government could consider remand alternatives. Human rights lawyer Mike Vidler has suggested a programme adopted in England of bail hostels, or halfway houses between custody and living at home, in appropriate cases.