Key members of Hong Kong’s pro-establishment camp are standing firm on their call for a sentencing council to redress what they described as lenient and biased court judgments over anti-government protesters, despite a stern warning from the chief justice.
Its main proponent, Holden Chow Ho-ding, a lawmaker and lawyer by training, insisted a sentencing council modelled after a similar set-up in Britain would help make punishments more consistent, and restore people’s confidence in the judiciary.
Another strong supporter is Elizabeth Quat, Chow’s colleague in the Democratic Alliance for Betterment and Progress of Hong Kong party.
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But other lawyers slammed the proposal, warning such a body would deal a blow to the courts’ independence, and deprive judges of using their expertise and experience to decide on vastly different circumstances behind each criminal case.
While sentencing concerned retribution, deterrence and rehabilitation, judges were informed above all by public interest in all of their decisions, and should not be subjected to a fixed set of guidelines, said legal eagles interviewed by the Post. Even then, judges had guidelines laid out by the Court of Appeal for certain types of serious crimes.
Senior barrister and seasoned politician Ronny Tong Ka-wah said Hong Kong’s unique political landscape made it unsuitable for the British model. “The politics in Hong Kong nowadays is way more complex than in the United Kingdom,” he said, alluding to the city’s deep polarisation.
The debate over setting up a sentencing council that had been seeded by the pro-establishment camp culminated in a rare and lengthy statement issued by Chief Justice Geoffrey Ma Tao-li on Wednesday, in his strongest defence yet of his colleagues and the integrity of the courts under his watch.
Sentencing, he stressed, was “independently and exclusively” a judicial function exercised by the courts, having taken into account legal principles, and people should refrain from making groundless criticisms against judges to undermine public confidence.
Ma was addressing a raft of complaints filed against some of his judges and magistrates in recent months, with critics from both sides of the political spectrum alleging that some on the bench had let their political beliefs override their decisions on sentencing protesters or granting them bail.
Chow, one of the sternest critics, has been advocating the adoption of a sentencing council. On Thursday, he said he remained unconvinced by the chief justice’s remarks.
“I believe everyone cherishes the impartiality of the judiciary,” he told the Post. “But unfortunately, simply repeating legal principles in the judiciary’s statement is not able to convince the public to remove the concern about the latest perceived bias of the judiciary, given a series of different verdicts heralding errors in application of laws, bearing in mind that justice must also be seen to be done.”
Earlier, Chow told the Post it would be clearer if sentences could be quantified through some form of standardisation of how each and every kind of mitigating and aggravating factor, for example, should be considered.
It may be seen as a political tool to heap pressure on the judiciary
Ronny Tong, senior barrister and Executive Council member
Even as he suggested such formulas, Chow advocated the model adopted by England and Wales in 2010 for a sentencing council. It consists mostly of judges, with appointments made by the chief justice but approved by the lord chancellor, the highest-ranked state officer. The latter also approves non-judicial appointees, who include lawyers, a high-ranking police officer, the director of public prosecutions and a scholar. Its task is to promote greater transparency and consistency in sentencing, while maintaining the independence of the judiciary.
It has since come up with sentencing guidelines for a long list of offences, ranging from the pettiest of theft to more serious crimes, such as arson. They set the range of sentences for each crime based on the degree of culpability and harm caused.
But barrister Tong, who is a member of the government’s top advisory body, the Executive Council, said the trickiest part was the body would be made up of appointees from outside the judiciary, which would immediately attract criticism.
“It may be seen as a political tool to heap pressure on the judiciary,” said the senior counsel, citing the divisive state of affairs in Hong Kong. Such a move might also draw intense scrutiny from the international community given the recent controversies gripping the city following the imposition of Beijing’s sweeping national security law in June, he warned.
Tong said the arrangement would also be in breach of the Basic Law, the city’s mini-constitution, which requires the courts to adjudicate cases without any undue influence.
Criminal barrister Lawrence Lau agreed, saying the move might risk harming judicial independence.
Lau said even the British model could be seen as infringing on the judiciary’s independence because the executive branch was allowed to make appointments to the sentencing council. While some might argue the arrangement was justified because Britain’s government was democratically elected, Hong Kong’s was not, he said.
“Criminal cases come in different odd shapes and forms and sometimes judges are required to think out of the box to pass a sentence,” Lau said, adding the council might tie judges’ hands.
Opposition lawmaker Dennis Kwok Wing-hang, who represents the legal sector, has said sentencing should be left strictly up to judges.
I am surprised by some politicians in the opposition camp who attempt to politicise the sentencing council
Holden Chow, lawmaker and lawyer
Chow disagreed, arguing it was not clear how the council would infringe on the independence of the judiciary. “I am surprised by some politicians in the opposition camp who attempt to politicise the sentencing council,” he said.
Former director of public prosecutions Grenville Cross noted the Court of Appeal had already been issuing sentencing guidelines for certain crimes, especially ones where the severity was more easily quantifiable, such as drug trafficking. Unlawful assembly involving violence, for instance, would result in jail time.
Yet Cross said these guidelines were not “straitjackets” and judges and magistrates could depart from them provided they had a good reason for doing so.
“Some people who are talking about a sentencing council seem to think that this will result in higher sentences and less discretion for judicial officers, but this is a misconception,” he said.
“In England and Wales, the sentencing council’s guidelines are not mandatory, although they should, as here, normally be followed, but they can be departed from for good reason.”
Former Law Society president Stephen Hung Wan-shun, who practises criminal law, recalled the need for a sentencing council was raised to him by then director of public prosecutions Kevin Zervos, before he left the Department of Justice to join the bench at the Court of First Instance in 2013.
While Hung said he was open to the idea, he had reservations over the idea being revisited because of last year’s social unrest, rather than as part of a broader review or reform.
“The pro is that it could be more objective,” Hung said. “But it’s also frequently suggested that sentencing is an art, not a science. If it’s the latter, we may as well let a computer do all the sentencing.”
More from South China Morning Post:
- Hong Kong’s Law Society hits out at complaints against judiciary, says unfair and unfounded attacks cannot be tolerated
- National security law: Australian judge’s early resignation no reflection on Hong Kong’s rule of law, judicial independence, Lam says
This article Hong Kong’s judiciary under fire over alleged leniency in protest cases: will a sentencing council redress claims of bias and lead to tougher penalties? first appeared on South China Morning Post