Sentencing principles

Sentencing principles  

The sentencing and punishment of offenders in the Hong Kong judicial system, particularly regarding juveniles, are governed by a set of core principles that balance the seriousness of the offence against the welfare of the offender and the interests of the community. 

Rehabilitation 

The welfare of juvenile offenders is of primary importance. The courts place greater emphasis on rehabilitation as distinct from deterrence or retribution. The procedure itself is designed to take into account the age of the offender and the desirability of promoting his reformation. The court often imposes a lesser sentence because of the offender's age. Crucially, the courts follow the statutory principle that imprisonment is a sanction of last resort: 

• No child (aged 10 to 13) may be sentenced to imprisonment, except where the child is found guilty of murder. A child also cannot be committed to prison for defaulting on the payment of fines, damages, or costs. 
• A young person (aged 14 or 15) must not be sentenced to imprisonment if he can be suitably dealt with in any other way. 

Even beyond the scope of the Juvenile Court, offenders aged 16 to 20 by the time of sentencing should only be sent to prison as a matter of last resort. However, the “last resort” protection for those aged 16 to 20 does not apply to “excepted offences” under Schedule 3 of the Criminal Procedure Ordinance (Cap. 221). These include grave crimes such as manslaughter, rape, robbery, affray, and certain firearms or drug trafficking offences. For these crimes, the court may impose imprisonment even if other methods of dealing with the offender are available. 

Duty to impose a commensurate sentence 

While rehabilitation is prioritized, the court is also duty-bound to impose a commensurate sentence that reflects the gravity of the crime. For serious offences, such as robbery, drug trafficking, or rape, the public interest (protection of the community, open condemnation, and deterrence) may demand a custodial sentence despite the offender’s youth. In such grave crimes, the mitigating factor of age may “pale into insignificance” compared to the magnitude of the offence. 

Extreme youth 

When a juvenile is sentenced, the court will always take his age into account. The younger the person is, the more important this factor becomes. Courts frequently identify “extreme youth” as a potent mitigating factor during sentencing.  

While the law generally prioritizes the welfare and rehabilitation of all young offenders, extreme youth serves as an “exceptional circumstance” that can justify significant leniency, including the decision not to impose a custodial sentence even for serious offences. 

“Extreme youth” does not have a fixed legal age cut-off. It depends on both the young person’s actual age and his level of maturity. As a general guideline, the courts categorize offenders under the age of 15 as falling within the bracket of extreme youth. Despite the 15-year guideline, the court noted that a mathematical approach is discouraged. A discount might still be appropriate for someone marginally over 15, while someone marginally below 15 is not automatically assured of such leniency.