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

PUBLISHED : Thursday, 01 August, 2013, 12:00am
UPDATED : Thursday, 01 August, 2013, 4:30am

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The recent recommendation of the Law Reform Commission that the list of excepted offences should be repealed is, therefore, welcome, not least because it will stimulate discussion in the consultation period, which runs to September 23.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".

After all, as Mr Justice Kemal Bokhary noted, "if it is not necessary to send a man to prison for very long, it may not be necessary to send him to prison at all", and the suspended sentence, as a punitive measure in its own right, is an obvious means of keeping the offender out of prison.

In Italy, for example, sentences of less than two years for non-violent crimes are routinely suspended, and criminologists recognise that short prison sentences can actually do more harm than good. When the sentence is short, it may not deter the offender, as he knows he will soon walk free, and there is also insufficient time for any meaningful re-education to occur. In addition, there is a real danger that the offender will become involved in a criminal subculture through association with hardened criminals.

Once it is accepted that the suspended sentence can be efficacious, a case exists for extending its availability. The current two-year ceiling is somewhat artificial, and consideration should be given to raising it to three years, or even more, as in Ireland, where there is no upper limit, and even quite long sentences are suspended when justice so requires.

It may also be appropriate to treat adults and young offenders differently, as, for example, in Italy, where the sentence of an adult can be suspended if it does not exceed two years, but that of a minor can be suspended if not more than three years.

Although there has been little research into the recidivism rates of offenders receiving suspended sentences, the recent figure in Switzerland is 17 per cent, while in Luxembourg it is 20 per cent. This suggests the scheme works, at least in comparison with actual imprisonment. After all, the recidivism rate among prison inmates in Hong Kong, based on readmissions to Correctional Services Department facilities within two years of discharge, is comparatively high, at 33 per cent, in 2009, and 31 per cent in 2010. Alternatives to imprisonment can be more effective in reforming the offender and, thereby, in promoting public safety.

If imprisonment is inevitable in a particular case, the option of partially suspending the sentence, which does not currently exist in Hong Kong, should also be considered. In Tasmania, for example, which has one of the lowest imprisonment rates in Australia, and makes wide use of community-based penalties, a prison sentence can be suspended, either in whole or in part. In Switzerland, if the sentence of imprisonment is of at least one year and not more than three years, half of the sentence may be suspended.

Although conditions may be attached to a suspended sentence order, these are strictly limited, partly due to a reluctance to "mix up" different penalties. In 2012, however, the English courts were given far wider powers to impose community requirements on offenders whose sentences are suspended, such as a condition to participate in a particular rehabilitative programme, and this approach may have much to commend it. If a suspended sentence can be linked more directly to, for example, good works or even therapeutic counselling, this could do much to enhance its credentials and allay concerns over its being a soft option.

Although the Law Reform Commission proposal is encouraging, it is only a start, and a full review of the ambit and purpose of the suspended sentence is now required in the interests of just sentencing.

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