Grant Hong Kong courts a freer hand in sentencing
Grenville Cross argues that the range of offences for which suspended sentences can be handed down should be widened to give Hong Kong's courts maximum discretion and more options
A suspended sentence, by which a term of imprisonment is withheld for a time, provides an offender with one last chance, short of incarceration. Suspended sentences are regularly used by the courts, although they are only available if an offender has been sentenced to not more than two years' imprisonment, which means, inevitably, that the criminality is not too serious.
Depending on the court's order, the actual suspension lasts for between one and three years. Provided that the offender behaves during that time, the sentence will not be activated. The offender's fate is thus in his or her own hands.
There are, however, no fewer than 41 excepted offences in respect of which the courts cannot pass suspended sentences. When suspended sentences were first introduced in 1971, a list of excepted offences was included (and subsequently added to), in an effort to placate the doubters and show that the government was not going soft on crime. The excepted offences include manslaughter, rape, drug trafficking, wounding with intent and indecent assault, although, paradoxically, punishments less serious than a suspended sentence are sometimes passed for such offences, including probation, community service and even fines.
Whatever the position 40 years ago, the trend these days is for the courts to enjoy maximum discretion in sentencing, and the more options available, the better.
The recent recommendation of the Law Reform Commission that the list of excepted offences should be repealed is, therefore, welcome, not least because it will stimulate discussion in the consultation period, which runs to September 23.
In England and Wales, where the courts can also suspend sentences for periods of up to two years, there are no excepted offences. In Canada, however, particularly grave offences involving serious personal injury, terrorism and criminal organisation, are excluded from the suspension regime. Such differences notwithstanding, there can be no doubting the value of the suspended prison sentence, and anything that can be done to make the power of suspension more generally available is beneficial.
However, once reform is embarked upon, the use of suspended sentences will have to be more generally reviewed. The courts, for example, have stated that sentences of imprisonment should only be suspended in "exceptional circumstances", but this may be too restrictive. A better test might be one that stipulates that suspension is appropriate if it is "in the interests of justice".