Duty to provide accurate and comprehensive submissions

There have been media reports repeatedly resorting to biased language to describe the appeals or reviews made by the Department of Justice (DoJ) in criminal cases since last year. I must reiterate that in respect of the sentences imposed by courts or decisions of acquittal in criminal cases, the DoJ has to carefully consider the relevant information. In the event that a sentence is manifestly inadequate or excessive, or a verdict is erroneous in point of law, the DoJ is duty bound to apply to court for a review or appeal.

In the course of legal proceedings, prosecutors of the DoJ have the duty to provide accurate and comprehensive submissions on the law to assist courts in the determination of cases. On sentences imposed by courts, the DoJ will consider all materials including the prosecution reports and the reasons for sentence before taking the cases forward in accordance with relevant legislations where appropriate. In general, the DoJ may make the following decisions:

(1) Apply to the magistrate under section 104 of the Magistrates Ordinance (Cap. 227) to review the sentences he/ she imposed; and

(2) Apply to the Court of Appeal, under section 81A of the Criminal Procedure Ordinance (Cap. 221) to review the sentences, on the grounds that the sentence is not authorised by law, is wrong in principle or is manifestly excessive or manifestly inadequate.

When the court’s decision of acquittal in the case is perverse (meaning no reasonable court, applying its mind to the proper considerations and giving itself the proper directions, could have reached this decision) or erroneous in point of law, the DoJ may take follow-up action under appropriate circumstances, including:

(1) Appeal by way of case stated to the Court of Appeal under section 84 of the District Court Ordinance (Cap. 336) for cases tried in the District Court; and

(2) Appeal by way of case stated to the Court of First Instance under section 105 of the Magistrates Ordinance (Cap. 227) for cases tried in the magistrate’s court.

The DoJ lodged 17 applications for the review of sentence under section 81A of the Criminal Procedure Ordinance in 2020. Of the 12 such applications decided last year, 11 were allowed. On cases related to public order events, the Court of Appeal in four of the cases repeated the sentencing principle as set out in Wong Chi Fung case of the necessity to emphasise deterrence and punishment in large-scale unlawful assembly cases involving violence be applied. In three judgments delivered by the Court of Appeal, it was stressed that “[b]ecause the respondents had committed a serious offence, appropriate weight must be given to the sentencing factors of punishment, deterrence and condemnation despite their youth”. The judgments also pointed out that “[i]f, as a matter of public interest, the seriousness of the offence and the circumstances of the case call for a heavy or deterrent sentence, the offender’s young age and personal background would count very little or even pale into insignificance, because the need for a punitive or deterrent sentence far outweighs the rehabilitative need of the offender”.

Some media, without regard to the grounds put forward by the DoJ at the hearings and the reasons for the decisions set out in the courts' judgments, used biased expressions that fail to reflect the facts in an objective manner. I don’t agree to this approach and have to stress that the DoJ has all along strived to ensure the proper conduct of its prosecutions. Prosecutors have always adhered to the highest of professional standards in handling criminal cases for justice to be administered with equal measure and in an even-handed manner at all times.

February 6, 2021