In a criminal trial, prosecutors from the Department of Justice (DoJ) play an important role in the process of sentencing. They are not only in charge of the prosecution, but also duty bound to assist the courts in imposing appropriate penalties and avoiding appealable errors.

Sentencing is an essential part of the administration of criminal justice, which is exercised by the court’s independent judicial power. In the event that a defendant is convicted upon his or her own plea or is found guilty after trial, it is the court’s duty to impose an appropriate sentence, after taking into account the relevant sentencing principles, the circumstances of the offence and the background of the offender etc. In accordance with established principles, a prosecutor shall, if appropriate and necessary, provide information to the sentencing court including previous relevant appellate court decisions. However, according to case law, a prosecutor should not attempt by advocacy to influence the court in relation to the quantum of sentence (AG v Jim Chong-shing (1990)1 HKLR 131). This point may be discussed further as it has attracted some different views including from the sentencing court.

After a judge or magistrate has imposed a sentence, the DoJ will carefully consider all materials of the case including the report of the prosecutor, the relevant sentencing principles and the reasons for sentence etc. If the sentence “is not authorised by law, is wrong in principle, or is manifestly excessive or manifestly inadequate”, the DoJ may take the case further. For example, the Secretary for Justice may, with leave of the Court of Appeal, apply to the Court of Appeal, under section 81A of the Criminal Procedure Ordinance (Cap. 221), for review of the sentence.

The DoJ made 6 and 4 such applications in 2018 and 2019 respectively, compared with 17 in 2020, most of which related to the radical protests and street violence stemmed from the so-called “anti-extradition amendment bill” incident. It is noteworthy that the Court of Appeal has heard and decided a total of 15 applications (public order events) since 2020. All these applications were allowed by the Court of Appeal setting out detailed reasons and principles for its decisions in the judgments.

For example, the first application was a case of desecration of the National Flag. Having carefully considered all the materials, it was concluded that the sentence by the trial magistrate was wrong in principle and manifestly inadequate. The Court of Appeal allowed the application and set out the following factors that ought to be taken into account when sentencing:

(1) Actual acts to the National Flag: the desecration caused, brought about or inflicted.

(2) Circumstances surrounding the desecration of the National Flag: if the acts have provoked others at the scene to commit other offences, this will aggravate the seriousness of the offence.

(3) Premeditated or planned: if so, culpability is higher.

(4) Joint enterprise with others: if so, culpability is higher. Even if others were only agitated to join in the course of the crime committed, joint enterprise still applies.

(5) Persistent desecration of the National Flag: it is an aggravating factor.

(6) The source of the National Flag: if the National Flag was obtained unlawfully, this will aggravate the seriousness of the offence.

Other applications were mostly cases in relation to unlawful assemblies and violent acts. Some of the more important principles as highlighted in the judgments are outlined here so as to give the general public a better understanding.

The Court of Appeal in various cases reiterated the sentencing principles as set out in the Wong Chi Fung case, which may be briefly summarised into four areas:

(1) The importance of the need for punishment and deterrence: the Court of Final Appeal reaffirmed the Court of Appeal that “when a large number of demonstrators are gathered, emotions are likely to run high, or the crowd may even become agitated, so that these situations have the inherent risk of breaking out into violence” and “[o]n the basic premise that public order must be maintained, and taking into account the gravamen of the offence of unlawful assembly, the court, in passing sentence, not only has to impose a penalty that is appropriate to the punishment of the offenders, but it also has to take into account the factor of deterrence. That is to say, a sentence must not only seek to prevent the offenders from reoffending, but also to give a warning to deter others from violating the law by breaking and disrupting public order in like manner”. The Court of Final Appeal also held that unlawful assemblies involving violence, even at a relatively low degree, will not be condoned and may justifiably attract sentences of immediate imprisonment in the future.

(2) The principle in (1) also applies to non-violent unlawful assemblies: to rigidly distinguish a violent or non-violent unlawful assembly in imposing punishment is impractical and in violation of the sentencing principles.

(3) Emboldenment effect: if an offence is committed in public enticing others to join or have an emboldenment effect, an uproar was caused in the crowd and other offences were committed as a result, these are aggravating factors to be taken into account when sentencing.

(4) Young offenders: the Court of Appeal in the case of Secretary for Justice v SWS stressed 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”.

Sentencing principles inform how sentencing is to be imposed. This is particularly important in the common law system where judgments of the higher courts bind the lower courts and where the power and duty to sentence is vested in the independent judiciary in exercise of the judicial discretion in accordance with law. In some cases, the Court of Appeal sees the need to reiterate that principles must be actually followed instead of just quoting the Wong Chi Fung case and not applying it. The judgments pointed out that “[t]he court shall act on the premise of maintaining public order”, and “[t]he Court of Appeal in Chung Ka Ho case once again extracted the legal principles in the Wong Chi Fung case to remind all parties concerned of the need to consider the gravamen seriously instead of just paying lip service to it.”

Every now and then, one sees in media reports that young defendants pleaded guilty and hence convicted before the trial court. A guilty plea will reduce the sentence to be imposed but the convicted person will still have a criminal record that may affect their future, for instance when looking for jobs. Had they admitted the offence and expressed remorsefulness upon their arrest, in appropriate circumstances, the police could have considered exercising Police Superintendent’s Discretion without bringing the cases to court. Needless to say, a number of factors have to be taken into consideration by the police which include: whether the juvenile offender was under the age of 18 at the time of committing the offence; the seriousness and nature of the offence; whether the offender voluntarily and unequivocally admits the offence; whether the offender is remorseful etc. Legal representatives have a legal duty to protect the rights of these young offenders and to advise them of the merits of their cases but also the consequences of a conviction in court, namely the criminal record and the sentence. In any event, the Police Superintendent’s Discretion scheme has been explained many times by the Government and the public should be better informed of these matters now. In addition to taking legal advice, one should carefully consider all other relevant information in order to make an appropriate decision.

Prosecutors of the DoJ take on the responsibility to ensure that justice is dispensed with equal measure and in an even handed manner at all times. Our prosecutors will continue to discharge duties with professionalism.

March 23, 2021

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