Hong Kong's criminal justice system is firmly rooted in the belief that punishment is only a means to an end, and that the primary aim is to ensure rehabilitation for offenders so that they can return to society as better citizens. It is, therefore, common to hear magistrates say they are willing to give first-time offenders a second chance, or impose lighter sentences because the offender has pleaded guilty and shown genuine remorse. Nobody should underestimate the effect of depriving a person of their liberty, and the irrevocable damage a criminal record will have on what may have been a promising career. Throwing wayward young people into jail for minor offences arising from a lack of judgment rather than criminal intent is more likely to ruin, rather than rehabilitate.
Magistrates are, therefore, receptive to a wide range of potentially mitigating factors. In the case of Amina Mariam Bokhary, who has been spared a jail sentence despite careless driving, failing to take a breath test, and assaulting a police officer, Magistrate Anthony Yuen Wai-ming cited her medical condition - bipolar disorder - that triggers unsociable behaviour.
But that was not all he cited. And here the public has a right to expect the magistrate to show clear and logical reasoning as to why there may be other mitigating factors so as to be assured that the decision is objective, and that Bokhary's family connection to permanent judge of the Court of Final Appeal, Mr Justice Kemal Bokhary, played no part in his decision. This was her third conviction for assaulting a police officer.
Yuen began his reasons for the sentence by noting Bokhary's 'good background, a well-off family, good education and outstanding academic achievement'. These words in particular have antagonised the public who feel they have just been told that a 'good background, a well-off family, good education and outstanding academic achievement' will buy you leniency from the courts. Yesterday, a different magistrate again referred to an offender's education and family background during sentencing for drink-driving-related offences.
It may be that the magistrates have been merely careless with their words. Indeed, a stable family background can be an acceptable reason to believe offenders will receive sufficient care and rehabilitation without needing to spend time in jail to mend their ways. But that argument was conspicuously absent from the decisions, giving the impression that a notable family background in itself will be looked upon favourably.
The reverse could surely be argued as well. After all, any offender who has received a good education should appreciate the need to respect law enforcement officers, and understand the dangers of careless drink-driving.
After a series of fatal accidents last year, there has been a welcome crackdown on drink-driving-related offences with new enforcement measures and a review of the legislation. Against this background, any leniency shown to offenders for reasons other than medical ones runs counter to the public mood.
In the case of Bokhary, it may be that her mental disorder alone is a sufficient mitigating factor against a jail term. If so, then there was no need to mention her family background or her education. The failure to show any logical connection between family background and the sentence leaves the public with the perception that those with a notable surname are more equal than others.