Should HK tinker with guilty plea & good behaviour sentence reductions?

It is a commonplace political observation that carelessly passed legislation often has unintended – and maybe ridiculous – effects. Our newly minted local legislators seem to have neglected this important warning.

Inmates. File Photo: GovHK.

We are all, these days, eager to secure national security. However, attempts to achieve this by jailing those convicted of national security offences for long periods have reached a curious position.

Readers will recall that – under the national security law bestowed on us by Beijing – national security offences come, like Pacific Coffee, in three sizes: small, medium and large. Those convicted must be imprisoned (there is no room for the usual alternatives; they do not mess around in Beijing) for terms ranging of up to five years; from five to ten years; or from ten years to 15 respectively – up to live behind bars.

It has already become clear that five is going to be a hot number. In the present climate nobody, or at least nobody in the Department of Justice, is going to risk classifying a national security offence as anything which could be mistaken for “trivial.” So the popular classification among prosecutors is the medium one.

When the case finds its way to the sentencing judge, however, some comparison is inevitable with sentences commonly imposed in less political cases – where a five-year stretch is usually reserved for cases involving the violent separation of a victim from his health or property, or large quantities of drugs.

National security lawNational security law
Photo: GovHK.

So five years is likely to seem enough for national security cases, most of which involve the holding and expression of certain opinions. Note, though, one curiosity which will become relevant later: the Court of Appeal has decided that the five years is not a guideline, like the conventional suggestions on sentencing which it dispenses. Five years is a solid minimum for secession offences deemed to be serious, so the usual discount for pleading guilty is not available.

Traditionally, if you pleaded guilty, you got a third knocked off what would otherwise have been the sentence. Recently local judges have followed an odious innovation from the UK and replaced the one-third discount with a sliding scale. You get one-third off if you plead guilty at the earliest opportunity. After that, the scale of the discount declines, reaching 20 percent at the trial kick-off and ten percent later.

The objection to this is that it encourages prisoners to admit offences before taking legal advice, which – in complicated cases – may mean they admit a charge to which they have a good defence. Nevermind.

Now, we come to the local contribution to the punishment regime, which is that convicted national security prisoners will not be eligible for any of the usual early release schemes, unless the Commissioner for Correctional Services is satisfied that they will not infringe again.

article 23 Safeguarding National Security Ordinancearticle 23 Safeguarding National Security Ordinance
Chief Executive John Lee signs the Safeguarding National Security Ordinance into law, effective March 23, 2024. Photo: GovHK.

Given the difficulty of proving a negative and the degree of national security zealousness expected of senior officials these days, this looks like a plausible way of ensuring that such offenders are going to be enjoying the correctional M&M’s for a long time. No doubt that is its intention.

And this gives rise to a curious situation. Let us take two prisoners, who were arrested on the same day and kept in custody thereafter. One of them is an Ordinary Decent Criminal (a term coined in Belfast for miscreants motivated by greed rather than politics) and the other is a national security offender.

The ODC has committed armed robbery. The judge takes as his starting point in sentencing the guideline supplied by the Court of Appeal for this offence (provided no firearm is used) which is five years. The ODC has pleaded guilty at the first opportunity so he gets the full one- third discount and is sentenced to three years and four months in jail. The national security offender, whether he has pleaded guilty or not, gets the grande five-year minimum.

Let us suppose they share a cell. You may think that the ODC, lucky chap, will be leaving a year-and-a-half or so before his neighbour, but that is not so. He can apply for release under supervision after serving half of his sentence, which would be just 20 months, or a little over a year and a half. If he does not fancy being supervised by the Correctional Services he can wait a bit longer and, if he behaves himself, get the discount for good conduct which is one-third of your sentence. This would get him out after just over two years, on the streets and unsupervised.

Prison VanPrison Van
A prison van outside the West Kowloon Law Courts Building on April 24, 2023. Photo: Kyle Lam/HKFP.

At this point, his cellmate still has virtually three years to serve. This is likely to strike both of them as rather unfair.

You can look at it another way. What would the sentence have to be if a judge wished to ensure that an ODC would actually, like our national security offender, be off the streets for five years, even if they qualified for the guilty plea discount and early release. The answer is 15 years.

This weird situation is a predictable result of the system of sentencing and imprisonment which has been around a long time. You might hope that legislators who were proposing to tinker with it would have first studied it in sufficient detail to avoid constructing obvious new anomalies. You would hope in vain, apparently.

The purpose of the guilty plea discount is to encourage early pleas, which save the time and expense of a contested trial. It appears that, if you are accused of a national security offence, you might as well try your luck in court. You won’t get the discount anyway. At least it will give you a few chances to wave at your mother.

Similarly the purpose of releasing prisoners early if they behave themselves is to encourage conformity to prison rules and sincere participation in rehabilitative activities. If these are desirable objectives you might think they would be equally desirable for all prisoners.

National security is an important objective of the law and order industry. But so is fairness.

Type of Story: Opinion

Advocates for ideas and draws conclusions based on the interpretation of facts and data.

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