Judges may get freer hand in sentencing

Reform commission wants public input on its plan to allow suspended sentences for offences including manslaughter and sex attacks

PUBLISHED : Monday, 01 July, 2013, 12:00am
UPDATED : Monday, 01 July, 2013, 4:05am

A controversial proposal to change the way certain criminal offences are punished is set to ignite heated public debate.

The Law Reform Commission has suggested in its latest report that the list of so-called excepted offences - those for which judges currently have no discretion to impose suspended sentences - be completely repealed.

The reform commission has launched a three-month public consultation that ends on September 23.

Under the current system, judges sentencing individuals who have committed such offences - which include manslaughter, attempted indecent assault, affray, robbery, using weapons during a burglary or possession of an offensive weapon in a public place - must either impose immediate custodial sentences or mild penalties such as probation or community service orders, or fines, said veteran criminal barrister Joseph Tse Wah-yuen SC.

Those who support scrapping the excepted offences list argue that it gives rise to injustice by forcing judges to choose between jail sentences, which may be too harsh, or milder sentences, which may be too light.

But others, such as the Association Concerning Sexual Violence Against Women, say that allowing suspended sentences means some offenders can "walk free", even after they have admitted guilt.

The proposal to scrap the restriction aims to give judges more discretion in sentencing, and some common-law jurisdictions such as Britain and most parts of Australia have no list of excepted offences.

The commission said that both the Law Society and the Bar Association shared the view that the concept of excepted offences was "outdated and should be abolished in its entirety".

Tse said he supported scrapping excepted offences after seeing suspended sentences were more appropriate in some cases.

"Some cases show it would do justice if judges who know the facts of the case well are given the option of a suspended sentence - a form of punishment that lies between a custodial sentence and a probation order or even a fine," he said.

The barrister added that Hong Kong had an appeals system that allowed the prosecution to challenge sentences they considered inappropriate or too lenient.

Director of Public Prosecutions Kevin Zervos said that even though excepted offences and the current law do not present difficulties, "it is acknowledged that excepted offences, in some cases, limit the flexibility of a sentence".

"A suspended sentence is not a soft option," he said. "The criminality of an offender's conduct is recorded in his criminal record, and if he breaches a suspended sentence, it is activated."

But Zervos said the Law Reform Commission's consultation required serious consideration and a long overdue discussion on the topic.

Linda Wong Sau-yung, executive director of the Association Concerning Sexual Violence Against Women, was concerned that a suspended sentence for a sex offence would be too lenient a punishment for the crime.

"Academically, a probation order may be a lighter sentence than a suspended sentence, as most lawyers would argue. But from the viewpoint of most laymen, suspended sentences are no different from letting the offenders walk free," Wong said.

"There are a lot of myths surrounding sexual offences here in Hong Kong," she said. "Some people still believe victims wearing sexy outfits and getting drunk might have seduced offenders at the time of the offence. We are worried about whether our judges - who are also part of the community - share similar thoughts, which could lead to leniency in sentencing and cause injustice for the victims."

She said Hong Kong judges should receive gender-sensitivity training before they were given the flexibility to hand down suspended sentences for sexual offences.

As for whether or not its proposal would be implemented, the Law Reform Commission said: "[It is] premature to say if and when a bill will be drafted to implement the recommendations, not least because it is up to the relevant bureau to decide whether or not to take the matter forward."

The Department of Justice also said it was too early to comment on the suggestion to scrap excepted offences at this stage.