Let defendants know likely sentence

Grenville Cross looks at the benefits for all of a transparent system that allows judges to reveal the likely sentence if a defendant were to plead guilty, and says it's time Hong Kong adopted the practice

PUBLISHED : Monday, 27 August, 2012, 12:00am
UPDATED : Monday, 27 August, 2012, 5:01am

"Justice," said Lord Atkin, "is not a cloistered virtue." Each year, thousands of people are prosecuted for criminal offences, with many contesting their guilt. If imprisonment is a possibility, the defendant will usually wish to know the likely sentence, if he or she pleads guilty at the outset. Although the defendant's own lawyer will try to give him an accurate assessment, the trial judge is best placed to give a correct indication. Yet, the law requires him to hold his peace.

For some offences, such as drug trafficking, rape and robbery, sentencing guidelines have been issued by the appeal courts, so a defendant can see what sentence he is likely to receive if convicted after a trial. Moreover, the defendant will know that, if he pleads guilty, there will usually be a sentencing discount of one third, as this demonstrates remorse and saves the time of the court.

However, for many offences, guidelines do not exist and, in any event, the specific factors of an offence may place the case outside the ambit of the guidelines.

In Hong Kong, the idea that a judge can tell a defendant what sentence will be imposed if he or she pleads guilty has, following practice elsewhere, been disapproved. The concern has always been that if the judge indicates the sentence in advance, this may pressure the defendant into pleading guilty and deprive him of a free choice in the matter. As former Court of Appeal judge William Silke once commented: "It is of major importance that there be no appearance of a defendant striking a bargain with the court."

Although the disapproval of early sentencing indications derives from English practice, the system in England and Wales has itself recently undergone fundamental change, and our jurisprudence must now catch up. Advance indications of sentence are now recognised as being of great value to the defendant, as well as to the legal system. After all, the defendant is basically concerned with the likely sentence, and if informed he or she might well decide to save everyone's time and expense and plead guilty. As England's former Bar chairman, Queen's Counsel Robert Seabrook, once noted, it is "absurd that people go through a trial because they don't know what sort of a sentence a judge has in mind".

In 2001, England's former Court of Appeal judge Sir Robin Auld, who had been asked by the lord chancellor to consider how the courts could best deliver justice, concluded that, provided safeguards were in place, it should be open to a judge, if requested by a defendant, "to indicate the maximum sentence in the event of a plea of guilty at that stage and the possible sentence on conviction following a trial". This would assist the defendant and his lawyers to assess the merits of a guilty plea, and enable an informed decision to be taken on the way forward.

Of course, under such an arrangement, the defendant must be told that he should not plead guilty unless he accepts his guilt, but the benefits of a transparent system of sentencing are obvious.

After all, guilty pleas lead to fewer time-consuming trials, with a corresponding saving of precious judicial resources and taxpayers' money. They also ensure that cases awaiting hearing dates are more speedily listed. Moreover, many defendants who only plead guilty at the last minute will be more ready to enter timely pleas if they know at the outset what the maximum sentence will be. In an era of effective case management, the defendant is surely entitled to be told by the judge where he stands, and not to be left in the dark.

In 2005, the English Court of Appeal decided that it was proper for a judge, if asked, to indicate to the defendant his or her view of the maximum sentence to be imposed, upon a guilty plea. England's then chief justice, Lord Woolf, said the change "simply substitutes the defendant's legitimate reliance on counsel's assessment of the likely sentence with the more accurate indication provided by the judge himself".

The duty of a judge, after all, is to manage the case as efficiently as possible from the outset, and this must include being completely frank with the defendant. A different culture now prevails in our legal system, and a more transparent pre-trial approach is in everybody's interests.

The effective administration of justice does not in any way endanger the right of a defendant to enter the plea he wishes, and anything that can be done to enable the defendant to make an informed decision on the conduct of his case is to be encouraged.

Grenville Cross SC, an honorary professor of law at the University of Hong Kong, is the sentencing editor of Hong Kong Cases and Hong Kong Archbold, and the co-author of Sentencing in Hong Kong