Sentencing Principles

Sentencing Principles

Section 17 of the Offences against the Person Ordinance 

The maximum penalty under section 17 of the Offences against the Person Ordinance is life imprisonment and, as this is the maximum penalty, the court may impose any lesser penalty within its jurisdiction. However, section 17 is an "excepted offence" under Schedule 3 to the Criminal Procedure Ordinance (Cap. 221), and a suspended sentence therefore cannot be imposed. 

In a case before the Court of First Instance of the High Court of Hong Kong, the court noted that there are no sentencing guidelines for the offence of wounding under section 17. The court established that sentences for this offence range from 3 to 12 years; that range of 3 to 12 years is not, however, a sentencing guideline, and a judge is not bound to treat 3 years as the minimum sentence. In another Court of Appeal case, the court reiterated the seriousness of the offence of "wounding with intent" and that sentences must be deterrent, identifying the important factors the court must consider as: 

1. the degree of premeditation of the assault; 
2. the motive behind the assault; 
3. the state of mind of the assailant; 
4. whether the assailant was under the influence of alcohol or drugs; 
5. whether the assault was an individual or a group act; 
6. the nature of the weapon used; 
7. the degree of force used; 
8. the injuries suffered by the victim; and 
9. the impact of the assault on the victim (and his family and others). 

The Court of Appeal also pointed out that, for certain violent conduct, such as a triad-related gang assault, the court must express strong condemnation and impose a more severely deterrent sentence. 

Section 19 of the Offences against the Person Ordinance 

The maximum penalty under section 19 of the Offences against the Person Ordinance is 3 years' imprisonment and, as this is the maximum penalty, the court may impose any lesser penalty within its jurisdiction. However, section 19 is an "excepted offence" under Schedule 3 to the Criminal Procedure Ordinance (Cap. 221), and a suspended sentence therefore cannot be imposed. 

Because section 19 covers an extremely wide range of conduct, there are no uniform sentencing guidelines; but the court has consistently emphasised that, for cases of this kind involving a wound or grievous bodily harm, an immediate custodial sentence is usually required, and that a community service order or a fine will be appropriate only in very rare circumstances.