TNAG-0263-FCO40-299-Problem-of-increase-in-crime-rate-in-Hong-Kong-1971 — Page 27

HOME OFFICE Whitehall London SW1

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23.

R&R

20.11.70

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A W Gaminara Esq

Hong Kong Department

Foreign and Commonwealth Office LONDON SW1

Your reference

HKK.14/38

Our reference

CRI 249/3/99

Date

Lo November 1970

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Dear Gaminara

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1100438

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You wrote on 29 October about minimum sentences and their possible introduction in Hong Kong, enquiring about our attitude to such a sentencing power in this country.

AsJexplained when we spoke in advance of your letter, the idea of minimum sen- tences for particular offences is occasionally canvassed in this country, but our view is that minimum sentences are contrary to the long established principle in the administration of justice that the Government and Parliament should indicate the comparative gravity of the offence by prescribing the maximum penalty which it considers appropriate, and that, subject to that statutory limit, the court should have discretion to determine the penalty for a breach of the law, having regard to all the circumstances of the individual case and the individual offender. Any attempt to administer justice in a vacuum by requiring the imposition of a standard minimum penalty without regard to all the circumstances could not fail to cause injustice and hardship. In any category of offence there is bound to be a wide variation in individual cases, including gravity and culpability, and it would be difficult to put it lightly - to cater for this in fixing a minimum sentence: if the minimum allowed in advance for cases with special mitigating circumstances, it might have to be so low as to appear rather derisory; if it was fixed with the more serious, or even average, case in mind, there would almost certainly be some instances where it would be too harsh. Moreover, any such pro- posal in this country would meet with the strongest resistance from judges and magistrates.

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I hope this general information is helpful and shows sufficiently that there are strong objections to minimum sentences, and that it is not necessary to consider the implications for the treatment of young offenders (though this is certainly one of the complications) or to speculate on any additional deterrent effect that might be provided. In respect of the latter I would only add that, while some might argue that such a sentencing practice would act as an extra incentive to decline from criminal activity, other more enlightened opinion would be likely to maintain that it is not so much the severity as the certainty of punishment which exerts a deterrent effect.

In Great Britain, the only exceptions to the general principle that the courts are left with a discretion in determining sentence are (so far as I am aware) the mandatory penalty of imprisonment for life on conviction for murder, and mandatory

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