Difference in Sentencing by Different Hong Kong Magistrates - Assignment Example

? Difference in Sentencing by Different Hong Kong Magistrates (A Research Proposal) of Rationale for the Study Inalmost all the criminal justice systems, there are two opposing schools of thought: Those who believe that sentencing of similar cases should be uniform and those who believe that sentencing should take an individualized approach. The first group argue that it is logical for “punishment to fit the crime that constitute the interesting penological questions” while the second group counters by arguing that “justice should be served by an individualized approach to sentencing” (Jacobson & Hough, 2007). The fact is that in creating laws, we have imagined a situation whereby a robber is handed the same sentence by all magistrates as any other robber. However, even these legislative pieces have given the judges and magistrates some discretion to decide on the exact sentence that the different robbers should be handed. This principle has been opposed by factions of the society. They have perceived such sentences as being based on personal whims rather than the law (Jacobson & Hough, 2007). This is a long-standing debate in the criminological circles in Hong Kong as in any where else. This approach has made some people to argue that the magistrates are sending the wrong message to the public (Jacobson & Hough, 2007). This is more so when such sensitive issues as socio-economic status come to play. The public will not understand why the judge let go of a first-time offender, who happened to be the niece of a judge; and took to jail another boy who has been a habitual offender, and who comes from a poor family, for the same offense. However, different magistrates will give different sentences for similar cases. This is not a default of Hong Kong’s criminal justice system. This is a principle that is carried out for the sake of justice; it is a principle that promotes rehabilitation of an offender rather than retribution. However, not many people agree to that principle. Some people believe that this principle has been misused. Yes, Hong Kong needs a criminal justice system that is thorough, impartial and fair: A justice system that will look at a robber and hand him or her the same penalty as any other robber. Human beings have tried to create a justice system that is blind to people’s social, academic, health or family backgrounds. But as much as we have wanted this to work, it has not been possible. A juvenile who steals from a shop can not be handed the same sentence as a grown man who steals from the same shop. If someone has committed a crime for the first time, you do not punish him as a habitual offender. But still people have reasoned that it is only when the justice process is free, fair and impartial that justice is truly served. Some people have gone as far as suggesting that certain juveniles should be subjected to the same justice system as the adults. These people have gone ahead and described delinquent acts crime: That murder is murder is murder, whether committed by an adult or a minor. These people argue that the children who engage in delinquent acts break the law just as any other criminal. They should thus face the full force of the law just any other person. Unfortunately, this has not always been the case. The same crimes, when subjected to different magistrates, the world over, have invited different sentences. This phenomenon has been more pronounced in Hong Kong. This has left some key stake holders in the Hong Kong’s criminal justice system wondering: Is there different sentences for similar cases in different magistrates? If yes, why have these similar cases received different sentences by different magistrates? There are numerous statistics which show that, indeed, there are different sentences for similar cases by different magistrates. This might have cast aspersions on the integrity and credibility of Hong Kong’s Judiciary. Some people have interpreted this to mean that the Courts are compromised in their judgments (and yes, there are times when some magistrates have clearly been compromised). This school of thought has argued that it is very difficult to remove the aspect of human frailty in a judge presiding over a case; that the judge is bound to have his or her preferred party. This preference will depend on the judge’s socio-economic inclination, political affiliation, tastes and preferences. In a nutshell, the sentence that such a judge hands will be based on his or her own personal whims. The most appropriate thing to do is for the judge, and all players in the criminal justice system, to be guided by certain legal standards and not personal discretion (Gaylord, Gitings & Traver, 2009; Ho Wai Kin, 2011). There is yet another school of thought which has supported the manner in which the magistrates have made their decisions. This school does not think that the magistrates have been prejudicial in their judgments. The differentials in the sentences, they have argued, have simply been a reflection of the different circumstances under which the defendants committed their offenses. The sentences have also taken into account the defendant’s personal characteristics. These people have noted that a first-time offender in assault should not be given the same sentence with a habitual woman batterer, for example. This is despite the fact that both are cases of assault. So, who is right and who is wrong? 2. Research Objectives and Research Questions This research shall wade through this debate and provide a comprehensive answer. All indications are that similar cases receive different sentence in different magistrates. This research, taking on a sociological and criminological stance, is going to investigate whether this is true. If it is true, the research is going to find out why that is the case: What is the underlying rationale behind this prevalent phenomenon? To this end, the research shall dig up and highlight some of the recent similar cases which have been sentenced differently even though they were similar. The research shall try as much possible to take into account opposing viewpoints so as to reach an objective decision. There is, thus, need to: First, know whether there are similar cases in different magistrates which have received different sentences in Hong Kong; and two, if is true that such is the case, to understand why there have been different sentences for similar cases in Hong Kong magistrates. Researching on this subject shall be a daunting task. There are not many literatures on this subject. It will also be hard to get permission to conduct research in correctional facilities. There have been a few attempts at explaining this issue. But in most cases it has not been the Courts as the focal point (a component of the Criminal Justice System) but the entire Criminal Justice System. This means that the available literature is wide-spread and abstract. The research is also going to re-view the criminal justice process right from the police investigation to the sentencing. This is so as to try and determine whether these processes also have an impact on the sentences that the magistrates give on a particular case. It is the hypothesis of this researcher that police investigation might play a significant role in the judgment given. However, what if the role is played solely by the Judiciary? By looking into some of the fundamental similar cases that have had different sentences by different magistrates, the research shall try to unravel the underlying principles of sentencing. The research shall also find and evaluate some of the mitigating and aggravating factors of a sentence; understand the reason behind the use of these mitigating and aggravating factors. To get a clear solution to this problem the researcher shall have to interrogate different academic materials, interview stakeholders in Hong Kong’s criminal justice system, conduct a focus group interaction forum, and give out questionnaires to be filled. All these will be done with a view to knowing whether the public understands such principles of sentencing as deterrence, prevention, rehabilitation and retribution. To this end, this research shall ask two interrelated questions: a) Is there different sentence for similar cases in different magistrates in Hong Kong? b) Why have similar cases in different magistrates had different sentences in Hong Kong? 3. Proposed Research Methods This research shall need the participation of several groups of people from diverse socio-demographic, political and economic backgrounds. These include those in the Criminal Justice fraternity such as private lawyers, police, social workers, prison wardens, prisoners, sociologists, criminologists, judges and so on and forth. This process shall also include the victims of the criminal justice system, their families and friends. Getting the opinions of all these people will go a long way in finding the objective of this research paper. As such, an integral research method in this project shall be structured interviews. I shall seek the opinion of such professional as magistrates, lawyers, sociologists on this issue. These people shall be asked whether they do believe that there are different sentences for similar cases in different magistrates. They shall then be requested to explain their answers. The victims, their families and friends shall be asked questions on the sentences that were handed out by the courts; they shall be asked if they think that the sentences they were given were harsh or fair; their feelings on the fact that similar cases receive different sentences in Hong Kong, or why they think that that is not the case. The general public shall also be asked questions on their perception of the Judiciary. The interview shall be split on the ration of 3:7 between the members of the general public and the stakeholders in the Criminal Justice System. Some of the persons that I would love to interview and work with include those in the Department of Justice and The Center for Criminology whose contribution in the area of criminology in Hong Kong has been immeasurable. These two have been integral players in criminological issues in Hong Kong for a very long time: The Department of Justice for its practical work and the Center for Criminology for its theoretical work. The research shall also use questionnaires to get people’s degree of understanding on the principle of sentencing. This shall be restricted on those who do not have any background on criminological issues. I will have to solicit for the services of one or two people who will help in the distribution of these questionnaire papers. It is imperative that these papers reach as many people as possible. This is the only way to make this process impeccable and have a far-reaching effect. Some of the questions that shall be contained in the questionnaire papers include: Do you know the role of the judges? Do you think the Judges have been fair in handing their judgments, give reason (s) for you answer? How do you think the judges should be giving judgments? Do you have any friend or relative who was sentenced by the magistrates? If yes, how did you feel? The problem with this research method is that some participants might decide to lie. The method is also restrictive. The participant can only say as much as the paper can allow him or her to say. However, there are those who are shy. These ones would rather be given such papers to express themselves. That is why I will retain the method. May be the best method of research to use would be the focus group. It would be preferable to get access to a prison facility, a rehab, or any other correctional facility. From these facilities I should gather at least 5 groups of 20 people each. I will then start off a discussion in each of these groups. The discussion shall be on various sentencing issues, most of which shall touch on their sentences. Focus groups are good as people are more likely to be candid. The questions asked in these focused groups shall mainly concentrate on the participants’ past experience and perspectives. The participants should open up on how they feel about the sentences that they received: Do they think it was fair? Or was it unfair? What did they think of the judge that presided over their cases? And do they still have faith in Hong Kong’s Criminal Justice System? Do they know of any person(s) that committed the same crime as theirs but received a lighter or heavier sentence? Why do they think that sentence was given? The people in the focus groups will be randomly assigned to the different groups. Care shall be taken to make sure that the participants are averagely male and females; come from Hong Kong; can speak English; have been victims, or are simply participants, of Hong Kong’s criminal justice system; and are older than 17 years old. This means that matching up the participants shall be done first. This will be followed by random assignment to the five groups. 4. Literature Review The million-dollar question has been: Why is it that some people seem to get preferential treatment from the courts in Hong Kong? Well, various literatures have shown that nothing can be further from the truth: the courts have not given harsher sentences to some accused and lighter ones to others (Gaylord, Gitings & Traver, 2009; Ho Wai Kin, 2011). The courts have dispensed justice on an individual basis (Gaylord, Gitings & Traver, 2009; Ho Wai Kin, 2011; Jacobson & Hough, 2007). However, there have been suggestions, explicit and implicit, that the courts should beginning giving uniform sentences for similar crimes. No where has this push been as pronounced as in the popular media. Television, radio, newspapers and magazines have carried stories of how some people were handed lenient sentences while others were given harsher ones. A case in point is the controversy that surrounded the alleged “light sentence” that was handed on one Amina Mariam Bokhar (Chui, 2010). Bokhar, who had been accused of assaulting a police officer while drink-driving and failing to take breathalyzer test, came from a well-of family background. Her relatives included an uncle who was a Court of Appeal Judge. This was not the first time that she was being charged with assault (Chui, 2010). She was charged with the same crime two times before. First it was in 2001 and the other time was in 2008. She escaped prison in both cases. That is why, this time round, the public expected a heavier sentence from the judge. The sentence given astounded many. The judge put Bokhar in probation for one year, fined her 800 Hong Kong dollars and suspended her driving license for a year. There was public outcry. Some people felt that the judge had been too lenient, probably due to the accused’s social status (Chui, 2010). The judge even made matters worse when he said this about the accused: “[Y]ou are of good background from a well-off family with a good education,” and added that she had “a pair of caring and concerned parents” (Chui, 2010). And even as the police described the sentence as a light one, politician Roung Tang requested for a “clarification over sentencing standards” (Chui, 2010). To some people, this sent a very wrong message to the public (Chui, 2010). It could be interpreted to mean that the rich could escape the hooks of the law. Indeed, some months later Bokhar’s ability to evade imprisonment was cited in pleas for leniency (Chui, 2010). Some people might argue that the court was indeed lenient on Bokhar. This especially the case when looked at against some of the decisions that the courts had made on similar cases some months later and even before. Some five months later a court sentenced an eighty year old man to prison for sexually assaulting an 18 year old woman (Asia Pacific News, 2010). The man had been accused of groping an 18 year old’s breasts (Asia Pacific News, 2010). A year later, a “Singaporean student who had been convicted of assaulting his former girlfriend while allegedly holding her hostage at his home was spared jail” (Lee, 2011). The 18 year old got a six month jail term suspended for assaulting his former girlfriend. In reaching her judgment, Judge Merinda noted that she had taken into account the fact that the young man had “the support of family and friends” and also because it was his first offense. Why the differences in the judgments of these seemingly similar cases? To answer this question it is imperative to first examine Hong Kong’s criminal justice system, how it works and why it works the way it works. After that it is equally important to understand the principles of sentencing or punishment. The criminal justice system of Hong Kong begins from police investigation, arrest, interrogation, prosecution, conviction, sentencing and lastly acquittal, incarceration or probation (Jacobson & Hough, 2007; Gaylord, Gitings & Traver, 2009). Some people think that a defendant is passed through a predetermined or fixed path (Gaylord, Gitings & Traver, 2009). The path is far from being fixed. Indeed, it is a long and most unpredictable path one can follow. Just because someone has been accused of murder does not mean that he or she shall end in the courts. In fact the route that such a suspect takes shall depend largely on the decisions that he or she himself makes as well as those that are made by the officials (Gaylord et al, 2009). This result into what Gaylord et al (2009) has described as attrition rate. According to the concept of attrition, as much as there are more crimes committed, even less shall be reported; less criminals shall go to prison than arrested (Gaylord et al 2009).One can attribute attrition to either the “procedures that are built into the system”-such procedures that sort out the guilty from the innocent (Ho Wai Kin, 2011; Gaylord et al 2009). The other reason is the degree of discretion that is built into the system (Gaylord et al 2009). Gaylord et al (2009) also note that some people have been agitating for uniformity in criminal law. Yes, uniformity is an integral element of criminal law. It is every body’s belief and wish that the law is supposed to give justice irrespective of a person’s social status: The law is supposed to give even-handed justice (Gaylord et al 2009). However, this principle is scarcely followed. This is expected as the principle is untenable and would itself result in injustice rather than justice. It is this principle of uniformity which demands that all people who have committed crimes of assault be treated the same (Gaylord et al 2009). But that is not possible. The police, and the judges have to take into account the specific circumstances of the assault; they also have to take into consideration the personal characteristics of the offenders (Gaylord et al 2009; Ho Wai Kin, 2011).The practice of judging a suspect or an accused as per his or her specific circumstances and personal characteristics is known as individualization (Gaylord et al 2009). Thus two persons that have been convicted of the same factors will receive different sentences depending on the circumstances of their crime. The process, thus, is a “negotiation about what the law is…and whether or not is should be applied” ((Ho Wai Kin, 2011). Attrition and individualization have played a significant role in the sentences that judges give. There are four main principles of sentencing: These are deterrence, rehabilitation, prevention and retribution (Ho Wai Kin, 2011). Before the judges sentence a guilty party, they have to determine for which of the above four principles they are sentencing him or her. Generally, retribution is losing favor with the current crops of criminal justice personnel (Ho Wai Kin, 2011). Retribution comes off as vengeful; it connotates revenge. However, sometimes the courts may give a harsh sentence to “reflect the gravity of the sentence” (Ho Wai Kin, 2011). Indeed, Ho Wai Kin (2011) gives a long list of some of the reasons that might compel the courts to give harsher sentences. These are known as aggravating factors. The aggravating factors enumerated by HO Wai Kin (2011) include: a) “The offence involves substantial planning or there is syndicate behind it” b) “The defendant commits the offences as principal offender or jointly with other culprits” c) “The offender takes advantage of the weakness of the victim” d) “The offender commits the offence by using his or her status as a law enforcement officer” e) “The offender abuses his/her position as a breach of trust” f) “The offender uses violence of weapon at the time of the offence” g) “The offender uses violence or threatens the victim with serious injury or death” h) “The offender causes significant economic loss to the victim as a result of the act” i) “The offender commits offences that are prevalent in the society” j) “The person is a habitual offender and has a previous similar record” k) “The offender attacks a law enforcement officer or public officer” l) “Two offences will pose a new threat or harm to the society” m) “The offences causes serious or permanent” n) “The defendant continue to commit the offence after being arrested” (Ho Wai Kin, 2011, p. 234) The list is, seemingly, endless. The above mentioned factors are enough to aggravate a person’s sentence. It is also important to note that for certain offences, there are legislation pieces in place which clearly state that the sentence should be increased in case an offender has more than one conviction (Ho Wai Kin, 2011). A good example is if someone is found to be a member of an outlawed group. Such a crime invites a fine of Hong Kong dollars 20,000 and imprisonment term of 12 months. However, in case of subsequent conviction for the same offence the fine will be increased to Hong Kong dollars 50,000.00 and an imprisonment term of two years (Ho Wai Kin, 2011). Another case in point is the crime of possession of firearms as stipulated under section 20 of the Firearms and Ammunition Ordinance, Cap 238. A subsequent offence of possessing the firearm “within ten years of the original conviction” invites an imprisonment period of 7 years as opposed to 2 years (Ho Wai Kin, 2011). Deterrence is another principle. It serves two purposes. It is used as a preventive measure against other “potential criminals from committing the same offence” (Ho Wai Kin, 2011). This is like a deterrent effect on the society. Another purpose is that the sentence will “prevent the persistent offender from committing similar offences again” (Ho Wai Kin, 2011). Rehabilitation is another principle that has become very popular today. Offenders are given such sentences that can only help them to rehabilitate or reform. Normally, the offenders might be given non-custodial sentences in which they do not spend time in prison. Most sentences that have been perceived to be lenient have been meted out for rehabilitation purposes (Ho Wai Kin, 2011). In the case of Bokhar, the judge noted that she was sick rather than bad; she did not have to be punished but to be reformed. The judge said: “You are bad, rather than bad. Unlike other criminals you do not need to be kept in prison” (Chui, 2010). Her lawyer, in his mitigation submission said that she was “intoxicated and suffered from the effects of concussion after car meandered into the oncoming lane and crashed into a bus” (Chui, 2010). Indeed, what her lawyer is a critical element that can reduce a harsh sentence to a light one. These are the mitigation factors. Jacobson and Hough (2007) carried out an investigation in Crown court on “the role of personal mitigation in sentencing.” Their findings were as follows: a) “Personal mitigation takes many forms, relating to the offenders past; the offender’s circumstances at the time of the offence; the offender’s response to the offence and prosecution; and the offender’s present and future” b) “Personal mitigation plays an important part in the sentencing decision; it can be the decisive factor in choosing a community penalty in preference to imprisonment” c) “Judges cited at least some factor of personal mitigation as relevant to sentencing in almost half of the 162 cases observed in the study” There were many more key findings, but these were the major ones. The two reasoned that for mitigation to be allowed to play a full part, justice should be served by and individualized approach (Jacobson & Hough, 2007). References Chui, T. (2010). Bokhary Dodges Jail Term after Third Assault on Cops. Retrieved from http://www.cdeclips.com/en/hongkong/Bokhary_dodges_jail_term_after_third_assault_on_cops/fullstory_48921.html. Ho Wai-Kin, V. (2001). Criminal Law in Hong Kong. The Netherlands: Kluwer Law International. Lee, D. (2011). Law Student Spared Jail over Assault. Retrieved from http://www.thestandard.com.hk/news_detail.asp?pp_cat=30&art_id=117159&sid=34489254&con_type=1. Gaylord, M.S., Gitings, D. & Traver, L. (2009). Introduction to Crime, Law and Justice in Hong Kong. Aberdeen: Hong Kong University Press. Jackobson, J., & Hough, M. (2007). Mitigation: The Role of Personal Weighing of Mitigating and Aggravating Factors. Retrieved from http://www.esmeefairbairn.org.uk/docs/Mitigation07.pdf. Read More