"And where the offence is," said William Shakespeare, "let the great axe fall." Sentencing guidelines can prevent crime by providing deterrent penalties for offenders and promoting transparency. They also ensure overall consistency between different courts.
Sometimes the courts are required to mete out severe penalties for particular crimes. Although the legislature prescribes the maximum penalty for an offence, the appeal courts promulgate guideline and tariff judgments for some offences, such as burglary and corruption. Trial judges are expected to follow the guidelines, and they have generally worked well, both in Hong Kong and elsewhere.
In 2005, the Supreme People's Court issued its second Judicial Reform Plan, designed to improve judicial procedure and efficiency. It required each offender to be appropriately punished, and the utility of sentencing guidelines was acknowledged.
When, in 2008, the court passed its "People's courts sentencing guideline", it was welcomed as a serious attempt to achieve just sentencing.
In 2010, the Supreme People's Court adopted, on a trial basis, sentencing guidelines in relation to 15 offences. They appear to be producing greater consistency in major cities and towns, although the position in the provinces and outlying areas is less clear.
This year, the mainland has been shaken by a series of child sexual abuse cases, involving teachers and officials, and the authorities have responded to public anger over inadequate penalties. In October, the Supreme People's Court, together with three other law enforcement agencies (procuratorate, public security and justice), issued a new, wide-reaching guideline statement for the handling of sex offences against vulnerable groups, including minors aged under 12 and migrant workers' children.
Although, in the past, some offenders have escaped their just deserts by virtue of an archaic law which has enabled them to claim sex with a minor (defined under Chinese law as someone under 14) is not rape, but the lesser offence of engaging sexually with a young girl in a brothel, the new guideline provides that "sex offences against minors must be punished severely".
What is perplexing, however, is that the court has only given absolute protection to girls under 12. Although some people may wish the age of consent to be lowered to 12, it remains at 14, which is already very low by international standards. As Lu Xiaoquan, of the Beijing Zhongze Women's Legal Aid Centre has said, if a girl victim is "under 14, it should be called rape. We have to achieve this".
The guideline not only prescribes severe punishment for offenders for "sex offences against minors", particularly those with special responsibilities, such as civil servants and guardians, but bans them from working with juveniles when at large, or even visiting schools and places where children gather.
Moreover, the seriousness of the offence is aggravated if violence is involved, or if the victim becomes pregnant or diseased, in which case a higher sentence is justified.
Non-custodial sentences are to be avoided, if possible, and institutions associated with child sex abuse, including schools, may have to compensate the victims.
As victims' rights require protection, the guideline places a welcome focus on privacy. Victims are to be interviewed in their own homes or in places where they feel at ease, and investigators must keep questioning to a minimum. Local authorities are advised to establish specialist juvenile departments to handle child sexual abuse cases, and the Ministry of Public Security has recently encouraged provincial police bureaus to create dedicated teams for juvenile cases, with 220,000 child units already in place.
Last September, the Ministry of Education separately issued guidance to schools on the prevention of child sexual abuse, which complements the Supreme People's Court guideline. Children are to be taught about the problem and how to protect themselves, and schools will also be required to check the credentials of teachers more carefully. A real determination to get to the root of the problem is evident.
Although the new guideline is neither a national law nor a judicial interpretation, it nonetheless carries real weight, and should not be dismissed as a mere sop to public opinion. Offenders face punishment appropriate to the crime, and child victims can now expect a better deal. Given the enhanced status of guidelines in recent times, the courts disregard them at their peril. Although judges still retain wide sentencing discretion, if they fail to adhere to the latest guideline for no good reason, the prosecutors can appeal to a higher court. After all, the Supreme People's Procuratorate, which will monitor its implementation, is one of the four agencies to have endorsed the guideline.
Grenville Cross SC, an adjunct professor of law at the China University of Political Science and Law, is honorary consultant to the Child Protection Institute