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The purpose of this study is to review the sentencing options for young offenders in Hong Kong, taking into consideration sentencing aims (deterrence, rehabilitation, incapacitation, desertion, restoration and reparation, etc.), sentencing principles and policies (dignity, equality, restraint in the use of custody, control of public expenditure, equality before the law, etc.) and other factors such as function of the penal system, public attitudes, economic costs, juvenile justice, judicial processes, social work as well as victimology and empowerment issues. The study has also drawn references from countries such as New Zealand, Australia, United States and United Kingdom in which measures of restorative justice are being practiced. In this youth study, we hope to discuss the possible sentencing and rehabilitative options for young offenders in Hong Kong.
A qualitative survey is employed for this study. Copies of a self-administered questionnaire, together with a discussion paper on the issue and the current situation of Hong Kong, were sent out to a wide spectrum of potential respondents including legal and judicial professionals, community leaders, academics, advisory committee members, agency administrators, educators and youth workers. Questions of the survey were directed to solicit respondents?/FONT> opinions towards community-based sentencing disposals, family members?/FONT> involvement as well as principles and practice of restorative justice. The survey was conducted from 27 January to 15 March 1998. A total of 75 copies of questionnaire were sent and 51 were successfully completed and returned. The analysis contains a synthesis of the qualitative data from the respondents and from an extensive review of the literature.
Most of the respondents of the study support the principle of community-based rehabilitation for young offenders. However, they stressed that references should be made to experiences of other judicial areas on how to put forth effort on rehabilitation by increasing sentencing options.
As a matter of fact, there is still controversy on the pros and cons of restorative justice. Its applicability to Hong Kong is not yet certain. The views of respondents on the pros and cons of the restorative justice are divided. Some respondents from this survey endorse restorative justice and suggest that they support its introduction in Hong Kong. They believe that the nature of restorative justice would nurture the notion of "forgiveness" and "repentance". Young offenders are also given opportunities to reflect over what they have done as a means to change. This self-educational process is vital to their rehabilitation.
Opponents come from respondents of a diverse backgrounds, be it from legal, social welfare, educational, or community. They are concerned that in practice restorative justice may render our criminal justice system ineffective, nourish abuse of power, encourage false restoration or even create greater injustice. The argument is that if the state does not initiate the prosecution it will be easier for the wealthier members of the community to escape from criminal liability if the victim agrees to reparation. The definition of crimes, the criminal procedures as well as the sentencing disposals may thereby be modified if restorative justice system is followed.
As noted above, while in recognition of the community based approach, there are concerns over the negative implications of the restorative justice system. These worries particularly refer to the restorative arrangement “outside the court system?which may imply that the rule of law is not followed or even justice is not seen to be done. However, if these potential shortcomings of restorative justice can be avoided, some of its arrangements are not necessarily completely inapplicable to Hong Kong.
In short, given the fact that most of the respondents are in recognition of the community based approach, mediation programme can be considered as one of the possible sentencing options for Hong Kong.
In view of the above discussion, the Federation will recommend:
Due to the fact that most of the respondents are in support of the community based approach for rehabilitation of young offenders who commit petty crimes, the Federation recommends that the government should consider enlarging community based counselling and training services to facilitate young offenders?rehabilitation and reintegration into the community.
When compared with other judicial areas, the current sentencing options for young offenders in the court are very limited. The Federation recommends the government to conduct a further research on this topic, and consider having more sentencing options to further facilitate the repentance and rehabilitation of the young offenders. Reference can be made to other judicial areas which have relevant experiences.
There is still controversy on the pros and cons of restorative justice and its applicability to Hong Kong is not yet certain. The Federation believes, in recognition of the community based rehabilitation, arrangements that contain restorative elements should also be considered when further research on possible sentencing options is examined.
To further develop community based rehabilitation, mediation programmes which have been successfully used in many judicial areas, can possibly be an option to enlarge sentencing choices in court for Hong Kong. While consisting the advantages and flexibilities of the restorative justice, mediation programmes can maintain their operation under the existing criminal justice system. As long as authority and judgement remains in the courts, most of the possible negative impact from restorative arrangement, such as deceptive restoration, evasion of criminal liability, or even obstruction in administration of justice, can possibly be avoided. The Federation recommends that the government consider using mediation programmes as a sentencing option in courts for young offenders who have committed petty crimes. Through the mediation programmes, offenders are encouraged to rehabilitate through repentance and reparation. At the same time victims are given opportunities to forgive the wrong done by the offenders.
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Youth Study Series No.15
