HONG KONG
STANDARD
MAY 13H
73
hongkong bar kovovidtion
Special Committee's statement on- Crime
punishment
and
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THE following is a statement on the four Bills published by the Government on May 11, 1973.
The Special Committee of the Bar Association on Crime and Punishment is anxious to support any reasonable measures which may have the effect of keeping the incidence and rate of serious crimes within tolerable limits, and any genuine effort to enlist the support and active cooperation of the public in the constant battle against crime.
At the same time, in common with all the members of the legal profession, it is specially concerned to ensure the preservation and strengthening of adequate afeguards against the risk of innocent citizens being unjustly accused and convicted of offences against the law. The risk of becoming a victim of injustice increases every day through the growing tendency of the Legislature to extend the scope of the criminal justice, and through the opportunities for corruption and abuse of power on the part of powerful agencies of Government. By insisting upon adequate safeguards, members of the legal profession are not seeking to protect the guilty at the expense of the more law-abiding members of the community. All lawyers, as members of the community, have an interest in seeing that proved criminals are made to account for the crimes. At the same time, they have a professional responsibility to see that innocent persons are not held responsible for crimes which they have not committed,
With these basic principles in mind, the Committee has given anxious and careful consideration to the latest proposals of the Government, contained in the four Bills published on May 11. The Committee's comments at this time are confined to these specific legislative proposals, because the Committee, like the rest of the community, is still awaiting the balance of the Government's anti-crime package. Furthermore, the proposals herein considered fall directly within the Committee's sphere of professional competence.
Extension of the powers of magistrates
The proposal to increase the sentencing powers of magistrates from a maximum of two years' to a maximum of four years' imprisonment will have several œrious consequences. More and more people will be brought before the courts and be tried for serious offences, perhaps carrying mandatory sentences of imprisonment, without the benefit of legal representation, since Legal Aid is not available in these courts. They will have no prior notice of the nature of the case against them other than the bare particulars of the charge. They will have to rely on the magistrate to make an accurate record of the evidence, because no shorthand writers are available. They will be tried by magistrates whose previous experience has been largely, and in many cases exclusively, gained from appearing on behalf of the prosecution. Although they satisfy the minimum qualifications appointment, few, if any, have the length of experience or maturity of age which is normally required of judges exercising comparable sentencing powers in England or elsewhere. There, despite the maturity of the legal profession, such powers are not entrusted to anyone below the rank of circuit judge.
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The significance of these changes must not be minimised. Whereas Government's previous measures imposing mandatory sentences could at least be said to affect the convicted, the presently proposed legislation will affect every citizen of Hongkong who finds himself accused under the laws.
These extensions of the power of summary trial are bound to make it easier for the prosecution to obtain convictions and to increase the risks of completely innocent persons being wrongly convicted of criminal offences. If such persons have to be subjected to mandatory sentences of imprisonment or corporal punishment, this gross injustice will be even worse. Extension of the Powers of District Courts
The proposal to increase the sentencing powers of District Judges, from a maximum of five years' to a maximum of seven years' imprisonment, is open to the same objections as those already mentioned in relation to Magistrates. Futhermore, it will have the effect of withdrawing the right of trial by jury a right which has long been highly valued as an instrument for ensuring popular involvement in the administration of justice and as a bulwark against arbitrary or oppressive harassment of the citizen by the Executive arm of Government in some cases which are now tried in the Supreme Court. Futhermore they will be deprived of the benefit of Legal Aid, unless the offence charged carries a maximum of 14 years imprisonment or more. This withdrawal of Legal Aid comes only six weeks after the introduction of limited legal aid in the District Court and at best can only be described as cynical.
If the Government is seriously determined to get the public more involved in the administration of justice, the Committee very much doubts whether reducing the number of trials by jury will promote its objects.
Administrative Convenience versus Liberty of the Subject The Committee is astonished that the Government should have sought to justify changes which are prejudicial to the liberty of the subject by asserting the need to relieve the serious burden now falling on the courts. The Chief Justice has unlimited power to appoint Commissioners of the Supreme Court from the ranks of the Bar and from among the District Judges, while the Governor has unlimited power to appoint more Acting District Judges and magistrates.
If more judges are needed, then these powers of appointment should be used.
At the same time the Government could substantially shorten the length of trials by abolishing the need for that part of the trial called the voir dire. The profession has been demanding for some time the complete replacement of the present procedures for dealing with the taking of confessions by police officers. The present arrangements lead to repeated public allegations of police brutality which seriously damage police-public relations. to conflict between the police and the judiciary which damages the confidence which each has in the other, to the use or rejection of police evidence in instances which probably lead in some cases to acquittals of the guilty and conviction of the innocent, and to the use of voir dire which very substantially increases the length of trials.
The Government, instead of grasping the nettle of police confessions, has chosen to extend summary justice, a step requiring only a few strokes of the pen. This is not good government,
Mandatory sentences
Apart from being a serious interference with the discretion of the judiciary and incidentally with its indeper tence, the Committee feels that experience of the effects of the amendment to the Public Order Ordinance last year demonstrates that mandatory sentences of imprisonment are not effective deterrents. We know of no evidence that there are fewer people carrying offensive weapons, now than there were before the amendment.
The Committee shares the concern of others over the increase of crime among the young, but doubts whether they can be made more law-abiding by being sent to prison, where drugs are plentiful and the influence of triad societies is all pervading. In his Annual Report for 1971-72. the Commissioner of Police expressed the view that "young criminals of today are not necessarily going to stop being criminals when they grow up". We agree-if all that the Government can do is lock them up with older and more experienced criminals.
Corporal punishment
The Government now proposes corporal punishment as an alternative to detention or imprisonment. We can only repeat that corporal punishment was widely used during the early history of the Colony, when crime was rampant. The object then was the same as the object now. It failed then and we see no reason to believe that our experience this time will be different. Preventive detention
The Committee is convinced that preventive detention will fail to meet its declared objective. This measure is unlikely to be used against the big-time criminal for whose serious crimes long terms of imprisonment are already available. In practice, it will probably come to be used, as it was in England, against petty criminals, hopeless recidivists, who are really social misfits and who in Hongkong include large numbers of drug addicts and petty thieves. This was the principal reason why it was abolished in 1967 in England after an experiment lasting only 19 years. These social misfits are not the offenders who are causing the present wave of public concert
Availability of special facilities and resources
Before the Courts are called upon to dispose of offenders in particular ways, it is imperative that the necessary facilities for dealing with such offenders be made available. This was mandestly not the case in relation to the introduction of the power to send offenders to detention centres. Judges who wanted to administer the "short, sharp shock" recommended by the Legislature found their purposes frustrated by the lack of detention centres. This was particularly true when mandatory sentences for carrying offensive weapons were introduced last year, because it meant that offenders for whom imprisonment was not suitable had to be sent to prison. This is still the position, and we know of no plans for substantial improvements in this direction.
Furthermore, the Attorney-General declared last November that the introduction of Preventive Detention would depend upon the availability of special facilities. The Committee sees no signs that the are available, or will be available for a long time to come. In conclusion the Special Committee on Crime and Punishment of the Hongkong Bar Association carmot, for all the reasons stated, support the proposals contained in the four Bills published by the Government on May 11. 1973.
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