There has been persistent criticism from the Judiciary about the restrictions on sentencing imposed by section 33 of the Public Order Ordinance. Following consultation with the Fight Crime Committee, proposals for reform of the law on possession of offensive weapons, including a recommendation that corporal punishment be abolished as a sentencing option for this offence, are being drawn up and will be submitted to the Council soon.
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The removal of corporal punishment for possession of an offensive weapon would significantly reduce the incidence of corporal punishment. It is therefore timely to review the whole issue of judicial corporal punishment, and to consider whether corporal punishment should be abolished.
Attitude of the Courts
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Although corporal
corporal punishment may be imposed for a wide range of offences,
of offences, the courts have used
have used it sparingly. The fact that from 1980 to 1988, the courts handed down sentences of corporal punishment in an
an average of
of only ten cases per year shows their distaste for this form of punishment and appears to rebut the contention that it is a deterrent for violent criminals. Although the public perceive corporal punishment as suitable for rapists, robbers and drug traffickers, it has been suggested that, in practice, this sentence is being used almost exclusively to circumvent the mandatory prison sentence under section 33 of the Public Order Ordinance, and in cases which do not necessarily involve violence.
Views of the United Nations Human Rights Committee (UNHRC)
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Article 7 of the International Covenant on Civil and Political Rights 1966, which applies to Hong
to Hong Kong, states that : "No one shall be
be subject to torture or to cruel, inhuman or degrading treatment or punishment". The UNHRC is critical of
of the continued existence of corporal punishment legislation in Hong Kong, and has recently asked the government to explain why such legislation remains
in Hong Kong in spite of Article 7. By allowing corporal punishment to remain as a sentencing option, it is likely that Hong Kong would be subject to continued criticism
continued criticism from international human rights organisations.
,
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A similar provision to Article 7, in the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, has been applied by the European Court to declare caning in the Isle of Man unlawful. The court regarded the way in which the punishment was carried out as degrading for the offender and for those administering the punishment. Corporal punishment is carried out in a similar way in Hong Kong.