2. What types of penalties are there for committing a criminal offence?
The maximum penalty for committing a particular offence is usually set out in the legislation of the relevant offence. The court will decide what sentence (i.e. penalties) to be imposed on an offender by taking into consideration all the relevant factors including for example the nature of the offence, the maximum penalty set out in the legislation, why and how the offence was committed, and the individual circumstances of the offender. The following list explains the usual types of penalties (i.e. sentencing options) that the courts in Hong Kong may impose on an adult offender :
- Imprisonment : In Hong Kong , the death penalty has already been abolished. Imprisonment is therefore the heaviest penalty and involves incarceration of the convicted offender in a prison for a fixed period of time. The heaviest form of imprisonment is life imprisonment. Normally the offender needs not serve the full length of the actual term of imprisonment imposed by the court. According to rule 69 of the Prison Rules (Cap. 234A of the Laws of Hong Kong), the period of imprisonment may be subsequently reduced if the conduct of a prisoner is good. The maximum amount of reduction should not exceed one-third of the actual term of imprisonment. In practice, a prisoner will normally be given the full one-third reduction unless he or she behaves poorly or violates any prison rules. Hence, if a person is sentenced by the court to serve 3 years' imprisonment, that prisoner will usually be released from prison after two years. Rule 69 does not apply to a prisoner serving a sentence of imprisonment for life.
- Suspended Sentence : The court may impose a fixed term of imprisonment and then order that the sentence shall not take effect for a fixed period of 1 to 3 years. This is called a suspended sentence and the practical effect is that the offender needs not serve any prison sentence unless that offender commits an offence again within the prescribed period of time during which the sentence is suspended. Suspended sentences cannot be imposed in respect of certain offences , known as "excepted offences", which are set out in Schedule 3 of the Criminal Procedure Ordinance. They include robbery, indecent assault and other serious crimes. Moreover, suspended sentences are only applicable for those offenders who are sentenced to not more than two years imprisonment
- Discharge (with or without conditions) : A discharge is the release of an offender without imposing any penalty after convicting him or her of an offence . This is an exceptional order and may be made if the Magistrate takes the view that it is inexpedient to inflict any punishment other than a nominal punishment on the offender ( having regard to the character, antecedents, age, health or mental condition of the offender or to the trivial nature of the offence or to the extenuating circumstances under which the offence was committed ) (see section 36 of the Magistrates Ordinance).
An absolute discharge bears no conditions, although a criminal conviction is still recorded against the offender. Where a conditional discharge is given by a Magistrate, the offender is required to enter into a recognizance, with or without sureties, in a sum not greater than $2000, to be of good behaviour by not doing certain prohibited acts, and to appear for sentence when called on at any time during a fixed period up to three years. If the offender commits the prohibited acts during the prescribed period, that offender may be required to pay the recognizance amount or be punished by the court for the original offence. A judge of the District Court or the Court of First Instance of the High Court also has the power to order conditional discharge of an offender after conviction under section 107 of the Criminal Procedure Ordinance and the recognizance amount may even exceed $2,000.
- Binding Over : A bind-over order is not a form of punishment but a preventive measure whereby the court requires a person to enter into a recognizance , with or without sureties, in a fixed sum, to be of good behaviour or to keep the peace for a period not exceeding 3 years. The Court of Final Appeal has held in Lau Wai Wo v HKSAR that a requirement in general terms that the person is to be of good behaviour or to keep the peace is too vague. Hence the bind-over order must also make clear what the person must not do during the prescribed period. For example, if a bad-tampered person has assaulted another in public, the court may order that person to be “bound over in the sum of $1,000 for one year to be of good behaviour and to refrain from engaging in fighting in public”. If that person fights in public within the one-year period, the court will order him to pay $1,000. The court may make a bind-over order against an accused person with or without convicting him, and may even be against a witness or a complainant who misbehaves in a court hearing.
For a person who has no previous criminal record and has committed an offence which is not too serious (e.g. common assault or fight in public place without any weapon), the prosecution may agree to offer no evidence against that person on condition that the person agrees to be bound over by the Magistrate. The advantage of this procedure (commonly called “O.N.E. Bind Over”) from the accused person's viewpoint is that he is technically acquitted of the criminal charge and so will not have any criminal conviction record. On the other hand, the interest of justice is satisfied by subjecting the accused person to a court order of a preventive nature so that he will not commit similar wrongdoing again. This O.N.E. Bind Over procedure generally requires the consent of both the prosecution and the accused person with the approval of the Magistrate.
- Community Service Order : A community service order is an alternative to imprisonment whereby the offender is required to perform unpaid work in the community. The work is administered by the probation service. The maximum length of such a sentence is 240 hours. Not all offenders are suitable for such orders, and suitability reports are called for before such orders are made. Breaches of community service orders will usually be dealt with by the imposition of an immediate custodial sentence.
- Drug Addiction Treatment Centre Order : The court may order offenders who are addicted to dangerous drugs to receive treatment and rehabilitation in drug addiction treatment centres. Such orders are not suitable for all offenders and suitability reports are called for before such orders are made. Offenders are kept in prison or in a reception centre whilst awaiting the report.
- Probation Order : Probation is a form of punishment primarily aimed at the rehabilitation of offenders. A probation order can last for one to three years. Whilst it is not precluded as a sentencing option for serious crimes, a probation order is unlikely to be made in respect of serious crimes. A probation order may only be made if the convicted offender consents to it. Persons under probation orders are required to be of good behaviour and to remain in contact with a probation officer as may be required. People on probation may also be required to reside in an approved institution. If a probationer re-offends whilst on probation (that is, the probation order has not yet expired), or breaches the conditions of the probation order, that person may be re-sentenced for the original offence. A second probation order may be made, which subsumes the first one. Probation orders cannot be combined with sentences of imprisonment or community service orders. For example, a guilty offender cannot be sentenced to both a community service order and a probation order at the same time.
- Fine : A fine is a monetary penalty which may be imposed in lieu of or in addition to other forms of penalty. Failure to pay a fine will result in imprisonment, usually for a period of time which accords with the amount of the unpaid fine. Fines may be ordered to be paid by instalments.
- Compensation Order : Where a person is convicted of an offence, the Court may order that person to pay to the aggrieved party compensation for personal injury or loss or damage to property, or both, as the Court thinks reasonable.
- Restitution Order : A restitution order is an order under which the offender is compelled to return any "ill-gotten gains" to such person or persons as the Court deems fit. If restitution is made voluntarily, it becomes a mitigating factor that the court may take into account when sentencing the convicted offender.
- Forfeiture : Under a forfeiture order, property is confiscated (taken away) from an offender. Where another person is entitled to that property, the Court will order it to be returned to that person. If an owner cannot be identified, under the forfeiture order the property may be sold or retained by the government or destroyed if it is of no value. The Court's power to order forfeiture does not extend to land or the buildings standing on it.
- Disqualification from driving : For driving offences, disqualification from driving is considered a severe penalty. Usually it is imposed only where the legislation governing the offence expressly requires it or where the Court finds that the offender poses a danger to the public if that person continues to drive.
- Disqualification of company directors : Under certain sections of the Companies Ordinance (Cap. 32), the Court may disqualify a guilty offender from holding the position of company director. Disqualification may be for periods of over 10 years in the case of particularly serious offences.
- Hospital Order : This Order applies to a person with mental problems. Detention in a hospital with police security is provided for under the Mental Health Ordinance (Cap.136). Where the crime is serious, and where doctors cannot predict when the offender may be fit for release, the period of detention is usually left indeterminate.