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Hong Kong’s new sentencing guidelines – “To plead or not to plead.”


Mar 06, 2017

In the past, defendants typically were entitled to a one-third discount from the starting point of sentencing if a guilty plea is entered on or before the first day of Trial. 

On 2 September 2016, the Court of Appeal handed down the judgment for two criminal cases: HKSAR v Ngo Van Nam CACC 418/2014 and HKSAR v Abdou Maikido Abdoulkarim CACC 327/2015.  The Court of Appeal revised the current sentencing guidelines by reducing the sentencing discount offered to defendants who plead guilty after the first opportunity for entering a plea.

The new sentencing guidelines are as follows:

 

The Magistrates’ Courts

  • one-third discount if defendants plead guilty when he/she is asked to tender a plea to the charge;
  • 20 – 25% discount* if defendants indicate a guilty plea after the Trial dates have been fixed, but before the first day of Trial;
  • 20% discount if defendants plead guilty on the first day of Trial;
  • less than 20% discount if defendants plead guilty during the Trial.

 

The District Court

  • one-third discount if defendants plead guilty on the first or a subsequent Plea Day;
  • 20 – 25% discount* if defendants indicate a guilty plea after the Trial dates have been fixed on the Plea Day, but before the first day of Trial;
  • 20% discount if defendants plead guilty on the first day of Trial;
  • less than 20% discount if defendants plead guilty during the Trial.

 

The Court of First Instance

  • one-third discount if defendants plead guilty at the Committal;
  • 25% discount if defendants indicate a guilty plea after the Committal but before the fixing of Trial dates by the Listing Judge;
  • 20 – 25% discount* if defendants indicate a guilty plea after the Trial dates have been fixed by the Listing Judge, but before the first day of Trial;
  • 20% discount if defendants plead guilty on the first day of Trial;
  • less than 20% discount if defendants plead guilty during the Trial.

* In respect of the guilty plea indicated after Trial dates have been fixed, but before the first day of Trial, the Magistrate or the Judge will have regard to the time at which the indication of guilty plea is given and all other relevant circumstances.

The Court of Appeal stressed that the Court will retain an overriding discretion in sentencing and will not consider the strength of the prosecution case in determining the discount to be afforded for a plea of guilty.

 

Comment

The revised sentencing guidelines aim to encourage defendants to enter a guilty plea at the first opportunity.  The rationale is to reduce the waiting time for other cases to proceed to the Trial and as a result, to increase judicial efficiency through better allocation of Court resources.

In particular, Hon Macrae JA stated that:-

“This Court can well understand the frustration of the courts and those whose responsibility it is to list cases for trial when defendants prevaricate or change their minds and instructions about their pleas resulting in trials that are aborted and ensuing hearing dates that are rendered useless.  The applicant’s conduct in this particular case exemplifies how the utilitarian value of a timely plea was minimal.  One should not forget that when an 8-day trial in the High Court is aborted at short notice, not only is the time of the courts and witnesses wasted, but other defendants who are in custody patiently waiting for their own trials to take place are also disadvantaged, particularly so if ultimately they are acquitted.”

Notwithstanding the benefits to the Judiciary, the revised sentencing practice undoubtedly has a significant influence on the strategy on entering a plea by defendants.  Before the new sentencing guidelines were introduced, defendants might decide to enter a guilty plea up to and until the first day of Trial in order to allow sufficient time for defendants to make arrangements before they were sentenced and for their legal representatives to review all the prosecution’s papers and fully advise on the merit of the case.  Now, defendants have to make a decision on their plea as soon as they are asked to tender a plea to the charge.  This can cause difficulties for Defence solicitors as they may not have been provided with all the prosecution’s papers before the hearing for plea.  It will inevitably lead to more application to adjourn cases.
 
If you are involved in a criminal matter, you should seek legal advice before the first hearing at Court because if a plea is taken, as we have already described there could be serious consequences if full discount is lost.   Legal advice should be sought as soon as arrest and charge has taken place so that your Defence lawyer can give you full and timely legal advice and advise you how to proceed.

The Judgment is available at:
http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=105628&currpage=T

Flora Leung, Associate


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