21. Post-conviction

Sentence

21.1   A prosecutor has an active role to play in the sentencing process by assisting the court to impose the appropriate penalty and to avoid appealable error; but a prosecutor should not attempt by advocacy to influence the court in relation to the quantum of sentence. A prosecutor should:

1. adequately (fully and accurately) present the relevant facts;
2. assist the court to avoid proceeding on any error of fact or law;
3. respond helpfully to any request by the court for relevant information;
4. fairly evaluate and, if necessary, test the opposing case and correct any apparent legal or factual error made by the defence in submissions;
5. provide information from previous relevant court decisions and official statistics;
6. where appropriate, make submissions on the type of sentence, but not quantum beyond providing a range supported by previous cases.

21.2   On sentencing, a prosecutor must not make representations about the Department’s attitude to a sentence or act in any way to fetter the discretion of the Secretary for Justice or the Director of Public Prosecutions in a possible review of sentence.

Costs

21.3   In limited circumstances the court has discretion to award costs against a convicted offender, but usually not where a plea of guilty was entered.

21.4   There needs to be “some feature of the trial indicating that as a consequence of the way in which the defendant conducted his defence, unnecessary or additional expenditure has had to be incurred by the prosecution or that the defendant has wilfully wasted the court’s time”: HKSAR v Cheng Tak-wai [2002] 4HKC 458. Such features may include:

1. the conduct of the accused throughout the trial proceedings;
2. the strength of the prosecution case at the commencement of the trial;
3. the accused’s state of knowledge of the truth and the availability of any defence;
4. apparent intentional delay of the proceedings by the accused;
5. insistence by the accused on the proof of undeniable, unimportant or uncontested facts.

21.5   An award of costs is not intended to punish the accused, but to compensate the prosecution for needless expenses. The means of the accused will be taken into account when an order is being considered.

21.6   If an accused is acquitted or proceedings against him or her are stayed, he or she will normally be entitled to be compensated for the costs reasonably incurred. Positive reasons for not making such an order may include:

1. the accused has brought suspicion upon himself or herself by his or her conduct;
2. the accused’s conduct has led the prosecution to assess the case as being stronger than it is;
3. the acquittal of the accused arose from a technicality (unless to refuse an order would violate the presumption of innocence in the accused’s favour);
4. the accused failed to reveal at an early and appropriate time a good and valid explanation for his or her conduct, being either a non-evidential matter or an obvious explanation known only to the accused.

21.7   The prosecution may apply for costs if an appeal or application for leave to appeal by a convicted offender is dismissed, especially if it was without merit.

21.8   Costs awarded to the prosecution are recoverable as a civil debt. The criminal court has no jurisdiction to order imprisonment in default of payment.

Other Orders

21.9   Prosecutors should give due consideration to apply for other relevant orders from the court, for example, an order for compensation or restitution, an order of disqualification from driving, an order of disqualification as a director of a company, an order of confiscation or forfeiture, an order of criminal bankruptcy, and any other order that may be appropriate to the case.