1. Principles
The objective of sentencing is to determine the criminal responsibility of an accused for the offence(s) of which he has been found guilty, or to which he has admitted. The duty of the Court is to impose the appropriate sentence for the offence(s) of which the defendant has been convicted.
The sentencing judge or magistrate should expressly state the starting point and the extent of any discount given and, where a defendant who has pleaded guilty is not given the usual discount, the reasons for withholding it.
The Court has a variety of sentencing options, including both custodial and non-custodial sentences. Custodial sentences include (1) imprisonment, (2) detention / training / rehabilitation centre orders, etc. Non-custodial sentences include (3) community service orders, (4) probation orders, (5) fines, etc. As a side note, death penalty has been absolutely abolished in Hong Kong since 1993.
Custodial Sentences
When determining the length of imprisonment, the Court will consider a number of factors on a case-by-case basis. The usual factors considered by the Court include the seriousness of the offence committed, the impact on the victim(s) (if any), the maximum sentence as specified by statute, the existence of any aggravating or mitigating factors, etc. In cases where the offender is convicted of more than one offence, the court may order the sentences to run concurrently or consecutively, subject to the totality principle (i.e. the total sentence should reflect the overall offending behaviour and be just and proportionate). For certain serious cases, such as trafficking in dangerous drugs, clear sentencing tariffs and sentencing guidelines are available for reference by the sentencing judge or magistrate to impose a sentence of imprisonment for a specified term depending on the quantum of the dangerous drugs trafficked.
If a defendant pleads guilty to the charge against him, a discount of up to one-third of the sentence is usually allowed. For cases appropriate, the court may order a suspended sentence of imprisonment. This means that a sentence of imprisonment is effectively imposed, but the convicted person does not serve the sentence immediately.
Regarding the aforementioned detention / training / rehabilitation centre orders, they are special sentencing options for young offenders as follows:
- Detention Centre Orders – for young male offenders aged between 14 and under 25, emphasising physical labour, strenuous exercise and discipline;
- Training Centre Orders – for young male and female offenders aged over 14 and under 21, with emphasis on rehabilitation, and the offenders will receive training in a trade; and
- Rehabilitation Centre Orders – for young male and female offenders aged between 14 and under 21, targeting at young offenders with no criminal record and who have not committed an offence of a serious nature.
Non-custodial Sentences
A fine may be imposed on a convicted person. The level of fine is determined by the seriousness of the case, the maximum fine set out in the statutory provisions, and the relevant case precedents.
The court may impose a community service order or probation order where appropriate. Potentially relevant considerations include: clear or light criminal record; defendant’s personal, family, educational, employment background; whether the defendant has genuine remorse; whether the defendant is suitable/capable of performing community services etc.