The Court of Appeal’s landmark decision on sentencing practice

Introduction

Since the mid-1990s, the Hong Kong courts had adopted the practice that a one-third discount on sentence would be given to defendants who pleaded guilty before trial. Such a practice is, however, in stark contrast with those in other common law jurisdictions such as England and Wales, Australia and Scotland which favour the ‘sliding scale’ approach. It was just a matter of time before our court would re-consider the issue – and the opportunity came to light recently.

On 2nd September 2016, the Court of Appeal (“CA”) delivered its judgement in Ngo Van Nam (CACC 418/2014) and Abdou Maikido Abdoulkarim (CACC 327/2015). This decision radically changes the current sentencing practice such that less discount will be given to defendants pleading guilty at a later stage of criminal proceedings.

 

 

The New Sentencing Approach

In the judgement, the CA laid down the following new sentencing approach: –

 

For trials in the Magistrates’ Court

• One-third discount for guilty pleas entered when the defendant is asked to tender a plea to the charge and before trial dates are fixed.
• 20% – 25% discount for guilty pleas indicated after trial dates are fixed but before the first day of trial.
• 20% discount for guilty pleas entered on the first day of trial.

For trials in the District Court

• One-third discount for guilty pleas made on Plea Day.
• 20% – 25% discount for guilty pleas indicated after trial dates are fixed but before the first day of trial.
• 20% discount for guilty pleas entered on the first day of trial.

 

For trials in the Court of First Instance

• One-third discount for guilty pleas entered at the committal in the Magistrates’ Court.
• 25% discount for guilty pleas indicated after committal but before the fixing of trial dates by the Listing Judge.
• 20% – 25% discount for guilty pleas indicated after trial days have been fixed but before first day of trial.
• 20% discount for guilty pleas entered on the first day of trial.

 

Note, however, that the Court retains an overriding discretion in sentencing and may deviate from the above guidelines in suitable cases. Also, the above revised practice only applies to a defendant who will reach the stages for which the revised discounts are identified. Defendants whose trial dates have already been fixed will benefit from the previous practice.

 

Our Comments

The judgement is an important watershed in the sentencing practice in Hong Kong. In the past, a defendant may well wait until the first day of trial to plead guilty and still enjoy the full one-third discount. This strategy will no longer work – criminal lawyers are now expected to analyze, balance and advise on the pros and cons of an early guilty plea.

Moreover, the revised practice can potentially give rise to injustice. It is not uncommon nowadays that prosecution materials are not fully disclosed to the defendant until a trial is fixed. As such, the revised practice will effectively ‘punish’ those defendants who wish to consider the strength of the prosecution case before deciding their plea. It remains to be seen how readily the Court is going to exercise its overriding discretion to resolve the potential injustice created by this new regime, and whether any constitutionality challenge would be mounted against this defect.

Please click here for the full judgment of Ngo Van Nam (CACC 418/2014) and Abdou Maikido Abdoulkarim (CACC 327/2015).

Written by: Felix Ng, Partner / Kevin Chan, Trainee Solicitor / Yuki Kong, Trainee Solicitor