Abstract
Unreasonable delay in prosecution is widely recognised as a mitigating factor in sentencing. Nevertheless, to date there is only scattered judicial discussion and academic literature on its doctrinal bases in Hong Kong. This article undertakes the task of exploring whether sentencing courts in Hong Kong have crystallised a coherent doctrinal basis or rationale underlying this mitigating factor. A thorough review of the case law reveals four different doctrinal bases, namely fairness, rehabilitation, public interest, and delay per se. These bases, however, rest on shaky doctrinal foundations and cannot withstand analytical scrutiny. Recognising this undesirable state of the law, this article ventures into proposing an alternative doctrinal basis for this mitigating factor, rooted in the constitutional right to be tried without undue delay enshrined in art. 87(2) of the Hong Kong Basic Law and art. 11(2)(c) of the Hong Kong Bill of Rights. This new basis, we contend, will offer the much-needed coherence to the law.
Introduction
“Inordinate”, 1 “unreasonable” 2 or “unjustifiable” 3 delay in prosecution is “widely recognised as a mitigating factor that can be taken into account when [the offender] is being sentenced”. 4 Commonly invoked by defendants who have endured “years in emotional hell … fearing that at any time there will be that knock on the door”, 5 sentencing courts are often urged to award a penal discount capable of reflecting that period of hardship. For instance, an offender convicted of using false instruments received a ten-month reduction in prison term on account of the two and a half years’ gap between his first and second arrest. 6 In another case, a defendant guilty of procuring the making of an entry in a record of a bank or deposit-taking company by deception and false accounting saw his “manifestly excessive” 18 months’ prison term reduced to 12 months because of the “unusual delay” between his arrest in 1999 and trial in 2002. 7
Despite its wide recognition, there is only scattered judicial discussion and academic literature on the doctrinal bases of this mitigating factor in Hong Kong. By far the only systematic study was conducted by Bagaric, albeit in the Australian context. He identified two rationales or doctrinal bases, namely accounting for the “anxiety stemming from the waiting associated with a criminal matter being finalised” and giving credit to the “rehabilitation that the offender may have undergone prior to sentencing”. Neither of them is capable of withstanding analytical scrutiny. 8 Bagaric then went on to advocate the abolition of delay in prosecution as a mitigating factor save for one narrow exception.
This article undertakes the task of exploring whether sentencing courts in Hong Kong have crystallised a convincing and coherent doctrinal basis underlying this mitigating factor. A thorough interrogation of the case law reveals four candidates, namely fairness, rehabilitation, public interest, and delay per se. Building on Bagaric's arguments, this article explains why none of them rest on strong doctrinal foundations or are capable of withstanding analytical scrutiny. This article then goes on to propose an alternative doctrinal basis, rooted in the right to be tried without undue delay that is constitutionally enshrined in art. 87(2) of the Basic Law (“
Delay in Prosecution as a Mitigating Factor in Hong Kong: An Overview
As alluded to in the introduction, pre-trial delay is “widely recognised” 12 as a mitigating factor by the sentencing courts in Hong Kong. The delay in question must, however, be an “unreasonable” or “inordinate” one. Whether the delay can be classified as unreasonable is to be determined in context, 13 taking into account factors such as the conduct of the investigating authorities and the complexity of the investigation involved. 14 If the investigation is proven to be particularly onerous, the sentencing court may conclude that the delay is free from inordinateness and thereby refuse to award any penal discount. 15 In Ma Bo Kee, the Court of Appeal, having recognised the complexity of the case involving among others ten defendants, over 300 police interviewees, the seizure of over 4,000 items of exhibits, and a serpentine fund-tracing exercise in respect of the bogus loans applications, came to the conclusion that the five-year lapse of time between the police report and trial constituted no excessive or unusual delay. 16
Importantly, the delay in question cannot be attributed to any fault on the part of the accused 17 or his or her deliberate gaming of the system. 18 In Cheung Curtis Ka Kim, the accused was sentenced to eight and a half years’ imprisonment after defrauding his victims and perpetuating an investment scam. The Court of Appeal, on review of his sentence, steadfastly refused to entitle the “applicant … to any consideration for the time it has taken to bring him to justice”. 19 That is because the accused knowingly left Hong Kong after committing the crimes expecting “his victims would never see their money again”, “sought to remain in the United States”, and actively contested his extradition proceedings 20 which culminated in a delay totalling 19 years. On the other hand, delay caused by prosecutorial fault “in the absence of good reasons”, 21 including unusually long investigations, ought to be accounted for in favour of the accused. Furthermore, delay caused by the accused cannot be “cured” or “cancelled out” by a “separate delay which lies at the door of the prosecution”. 22
While it has been said that “significant and unexplained delay, per se, is a ground to pass a more lenient sentence”, 23 the sentencing and sentencing review courts have put forward a host of different rationales explaining why penal reduction is warranted. The bulk of these rationales will be explored more fully in the next Section inquiring into their doctrinal incoherence and analytical deficiencies. Suffice to offer a preliminary sketch here for the purpose of illustrating how this mitigating factor operates in practice. First, the “anguish” 24 or “mental conditions” 25 such as depression engendered by the accused being placed “under the strain of legal proceedings for a very long time”, 26 exacerbated by “the uncertainty and threat of the prosecution hanging over his head longer than necessary”, 27 call for leniency as a matter of “fairness”. Second, as the Court of Appeal opined in Hui Siu Man, what is “of crucial importance was the delay in the prosecution of the offence after the respondent had acknowledged his guilt”. 28 The fact that the offender, despite having already admitted guilt, continued to nonetheless endure such hardship inclines the courts to pass a lighter sentence. Third, a discount is more likely to be awarded if the accused has made good use of the delay to rehabilitate, make up for his or her fault, or compensate the victims. For example, the Court in Hui Siu Man gave credit to the fact that “[t]his delay has given [the accused] the opportunity to rehabilitate himself by obtaining steady employment and to repay a very large amount of the money which he had to borrow to make restitution”. 29 Fourth, borrowing the parlance of administrative law, unusual pre-trial delay may give rise to “a legitimate expectation that he will not be further pursued in respect of his offence”. 30 The “frustration of that expectation” 31 again inclines the sentencing courts to pass a lighter sentence.
Once the sentencing courts are satisfied that there is an inordinate delay, they will usually pass a lesser sentence such as reducing the term of imprisonment. Note, however, that the extent of penal reduction may not (and often does not) correspond exactly to the length of delay. In Ho Hon Chung Danel, Woo VP noted that “delay as a mitigating factor would necessarily only warrant a relatively short reduction in sentence” as the contrary would “give rise to a wrong idea that it would be better for a defendant to unjustifiably drag out a case … rather than to plead guilty or to proceed to trial expeditiously”. 32 In that case, notwithstanding the matter having been dragged on for over six years, only a three-month reduction in prison term was awarded. Exceptionally, an unjustifiably long delay may impel the court to suspend the sentence. In Chan Kit Bing, the delay which took place in the peculiar circumstances of the case rendereed “suspension of the sentence an appropriate method of disposal”. 33 That is because, at the time when the Court of Appeal gave judgment after reviewing the sentence, more than six years had lapsed since the accused committed the offence. There was also no suggestion that it was the fault of the accused which led to the delay, or that she deliberately hid from the police. Such “wholly exceptional circumstance” therefore warranted a sentence suspension.
The Doctrinal Underpinnings of Delay in Prosecution: An In-Depth Interrogation
Bagaric, after a thorough review of the Australian case law, identified two “doctrinal underpinnings” or “rationales” underlying the mitigating factor of delay in prosecution. First, the fairness limb according to which a penalty can be reduced if “the delay causes the offender anxiety or hardship”.
34
Second, the rehabilitation limb according to which a lighter sentence may be passed if the “offender during the period of the delay demonstrates progress towards rehabilitation … [and] display[s] remorse”.
35
These two rationales are echoed by the Singaporean Court of Appeal. In Tan Kiang Kwang v Public Prosecutor, Yong CJ phrased the rationales as follows: Firstly, the accused may have to suffer the stress and uncertainty of having the matter hanging over his head for an unduly long or indefinite period. … Secondly, if there is evidence that the accused has changed for the better between the commission of the offence and the date of sentence, the court may also properly take this into account in appropriate circumstances.
36
Likewise, Wood CJ sitting in the New South Wales Court of Criminal Appeal said in Blanco v R that: The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach.
37
In Hong Kong, a thorough review of the authorities shows that courts, including the appellate courts, have yet to comprehensively and systematically elucidate their views on this issue. That said, traces can be found in scattered dicta. We argue that the sentencing courts in Hong Kong have articulated a total of four rationales, none of which are doctrinally sound. We will now examine these rationales in turn.
Fairness
Fairness as a Doctrinal Basis: An Exposition
Courts most commonly appeal to the multi-faceted notion of “fairness” when explaining why delay warrants a sentence reduction. The first facet concerns the mental burden imposed by the uncertainty surrounding the offenders' fate. Those who have suffered from delays throughout the various stages of the criminal justice process – including arrest, laying of charges and trial – are placed “under the strain of legal proceedings for a very long time”. 38 The uncertainty that flows from the “threat of the prosecution hanging over his head longer than necessary” 39 is likely to cause extreme stress, mental anguish and huge disturbances to an otherwise normal course of life. Such uncertainty is equally unsettling for an accused who was released unconditionally after a first arrest, only to find himself or herself re-apprehended again at a much later time. The perhaps sudden and unexpected second arrest may exacerbate the mental anguish for it extinguishes the hitherto genuinely-held hope that “the storm was over”. 40
The second facet, which is a corollary of the first, concerns the frustration of a legitimate expectation that one will not be pursued any further. This is especially relevant for those offenders, mentioned in the preceding paragraph, who are re-arrested again many years later after they were first apprehended, at a time when they truly believe that the Damocles’ sword has all but vanished. In Cheung Suet Ting, the Court of Appeal stated that the accused may have by reason of the delay acquired “a legitimate expectation that he will not be further pursued in respect of his offence”. 41 The phrase “legitimate expectation”, which is commonly associated with the notion of “fairness” 42 in administrative law parlance, seems to connote similar ideas. To put it in more precise terms, it is the “frustration of that expectation” 43 that gives rise to such unfairness and thereby warrants a penal discount.
To summarise, as the Court of Appeal pronounced emphatically in Chiu Peng, a sentence reduction serves to “redress that additional suffering to reach a fair and just punishment for the defendants”.
44
(b) Fairness as a Doctrinal Basis: The Problems
Frequent references to fairness aside, the question of whether it qualifies as an analytically coherent and conceptually sound doctrinal underpinning remains by-and-large unaddressed by the courts in Hong Kong. As a preliminary matter, it is worth highlighting that there has been some judicial discussion on whether unfairness must first be shown before a penal discount can be awarded. To elevate unfairness to a compulsory requirement would considerably strengthen if not confirm the proposition that fairness is indeed the doctrinal underpinning of delay, and perhaps subjugate or even eliminate other non-competing doctrinal underpinnings such as rehabilitation. This would likewise foreclose any further doctrinal inquiry. It is, therefore, important to first gauge the veracity of this claim.
Support for this proposition can be gathered in the case of Ho King Nang. There, the Court of Appeal cited with approval a passage from Sentencing in Hong Kong where the authors suggested that “[t]he court will also need to be satisfied that the delay has ‘resulted in unfairness to the accused’”, 45 quoting the Australian case of R v Law. 46 This appellate authority aside, the preponderance of authorities seems to favour the contrary view. In Lau Kin Yu, after rejecting the proposition that it is necessary for the accused to show restitution, the Court of First Instance noted additionally that “significant and unexplained delay, per se, is a ground to pass a more lenient sentence”. 47 This indicates that it is likewise not necessary for the accused to show unfairness before he or she could ask for a reduced sentence. In Chan Chun-ming, Deputy High Court Judge Bruce sitting in the Court of First Instance observed that the criterion which “the delay must be considered to have cause [sic] unfairness to the accused … is not supported by the authorities”. 48 The Deputy Judge then went on to state that he was not able to construe Keith JA's observation in Chan Yuk Kwan, that “[s]ignificant delay may well in a particular case go to reduction of sentence, because of the stress occasioned when a case hangs over the head of a person awaiting trial”, 49 to mean “stress or rehabilitation are pre-requisites for the consideration of delays as a mitigating factor”. Instead, he understood Keith JA “as saying that they are relevant in the highly relevant factors”. 50 Furthermore, as a matter of practice, sentencing courts do not often spell out expressly whether unfairness, if any, is factored into the sentencing calculus.
On balance, therefore, it would be safe to conclude that unambiguous judicial consensus on this issue has yet to emerge, so that the door to exploring the doctrinal bases of delay in prosecution remains open. With this in mind, we now turn to examining the deficiencies associated with the notion of “fairness” as a doctrinal basis.
The so-called “fairness limb” is constructed upon the pure speculation that the accused has really suffered from mental stress and anguish as a result of the delay. While it is not unreasonable for the sentencing judges to draw inferences of that kind, such inferences may not necessarily be backed by facts beyond mere supposition or conjecture. Indeed, authorities show that the accused often need not present any concrete evidence demonstrating actual unfairness, even though he or she is likely to be in a good position to do so. Hence, the unfairness spoken of may be more “perceived” than real. Even in the case of Ho King Nang referred to above, where the Court of Appeal insisted that there must be “unfairness” arising from the delay, there is no mention in the judgment whether it has to be backed by facts.
Similar criticisms can be levied at the second facet of the fairness limb concerning the “legitimate expectation” that one will not be further pursued. If the frustration of such legitimate expectation is said to generate unfairness, then the sentencing courts should at least be prepared to confirm that such expectation has indeed arisen in the first place, and that the frustration of which has led to actual, rather than speculated, unfairness.
Since it is unclear whether the unfairness in question is supported by facts, this limb and its operation in practice rest on shaky doctrinal and conceptual foundations. Bagaric, noting the additional possibility that the delay might actually benefit the accused, summarised the problems of the fairness limb succinctly: In order to enliven this limb … generally there is no need for offenders to establish that the wait for the sentence has caused them actual stress or inconvenience. The fairness limb of delay is based on inferred, as opposed to demonstrated, inconvenience. While it is tenable to postulate that offenders would prefer not to have a long delay between the commission of the offence and their sentencing, it is no less equally plausible to suggest that in some (and in fact many) circumstances offenders are advantaged by delay because it provides them with a greater opportunity to plan for any sentence that they may receive.
51
The operation of the fairness limb in practice can be contrasted with that of the rehabilitation limb, the second rationale to be explored below. The courts have on several occasions indicated that they expect some form of evidence in support of the claim that the offender has rehabilitated. 52 The contrast in approaches may be rooted in the fact that, whilst it is relatively easier to infer or even presume unfairness in the abstract, the same cannot be said for rehabilitation. One simply cannot lightly assume that all the accused would undergo voluntary rehabilitation or compensate victims for their crimes. Likewise, it may be easier, at least in some circumstances, to adduce proof of one's rehabilitative efforts, such as by showing a readjustment of lifestyle or making of restitution to the victims. That being said, these provide no principled reason for the differential evidentiary demands. As we have argued so far, it is wrong for the sentencing courts to assume that actual unfairness invariably arises as a result of the delay. More importantly, precisely because of the intrinsic abstractness and vagueness of the notion of unfairness vis-à-vis rehabilitation, it is all the more important that the sentencing courts are certain of its existence.
Equally, there can be no serious suggestion that the sentencing courts are incapable of determining the existence of actual unfairness, however thin the evidence might turn out to be. They have, for example, required proof of similarly abstract notions like remorsefulness. Indeed, no matter in the civil, administrative or criminal context, courts do frequently conduct assessments on (un)fairness in order to address a whole range of different issues. One notable example is the application for stay of proceedings, in which courts are required to determine whether, on balance of probabilities, fairness requires that the proceedings be stayed with the defendant bearing the burden of proof. 53
Considered as a whole, given the importance of mitigating factors the presence of which often “decrease the culpability of the offender or decrease the extent to which he should be punished”, 54 it would be highly undesirable if the sentencing courts approach the issue of delay in prosecution on the basis of speculative unfairness. Indeed, if the speculation is not backed by facts, the accused ought not to be regarded as deserving of mitigation.
Rehabilitation
Rehabilitation as a Doctrinal Basis: An Exposition
The second doctrinal underpinning or rationale, identified also by Bagaric, is rehabilitation (i.e. the “rehabilitation limb”). According to the sentencing courts, pre-trial delay opens up a valuable opportunity for the accused to reorder and explore a new life free from criminality. 55 This is crucial to convincing the sentencing courts that, since “rehabilitation is a real prospect”, 56 a lighter sentence ought to be passed. As Lee J said in Cheung Chak Ming, “I do not think that it is in the public interest to impose such a sentence on the defendant which might have the effect of discouraging and frustrating his rehabilitation”. 57 Moreover, the courts may give credit to the fact that the accused has in the course of rehabilitation made restitution to the victims. 58
The Singaporean courts have on various occasions examined in detail the core tenets of the rehabilitation limb. In A Karthik v Public Prosecutor, Menon CJ opined that delay “affords the court the opportunity to gauge how the offender has progressed in his rehabilitation in the intervening period, given that this trajectory can be extremely pertinent to the court's assessment of what is the most appropriate sentence to impose in the circumstances”. 59 Similarly, V K Rajah JA in Chan Kum Hong Randy v Public Prosecutor cautioned that the failure to give credit to the offenders’ rehabilitative efforts “may effectively undermine and even undo whatever positive progress an ex-convict may painstakingly have achieved in his determination to rebuild his life following his earlier incarceration”. 60 He went on to summarise the position thus: “[i]f the rehabilitation of the offender has progressed positively since his commission of the offence and there appears to be a real prospect that he may, with time, be fully rehabilitated, this is a vital factor that must be given due weight and properly reflected in the sentence which is ultimately imposed on him”. 61
This rationale is likewise emphasised in a number of Australian authorities. For example, in R v Miceli, the Victorian Court of Appeal commented that it is especially important to take into account the pre-trial delay at the sentencing stage “when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganising his life”. 62 Likewise, the Western Australian Court of Criminal Appeal noted that “[w]here, prior to sentence, there has been a lengthy process of rehabilitation … the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation”. 63 In R v Cockerell, Chernov JA opined that “where there has been a relatively lengthy process of rehabilitation since the offending … the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation.” 64
Having laid out the contours of the “rehabilitation limb”, we now turn to examining its problems.
(b) Rehabilitation as a Doctrinal Basis: The Problems
Unlike unfairness, it is clear from the authorities that it is not a must for the accused to rehabilitate during the period of the pre-trial delay in order to ask for a reduced sentence. In Ho King Nang, after noting the authorities of Hui Siu Man and Cheung Suet Ting in which issues of rehabilitation and restitution were raised and considered, the Court of Appeal concluded that these cases “do not weaken in any way the basic principle that the Court may give a deduction if there has been unreasonable delay in prosecution”.
65
The claim that rehabilitation is a compulsory ingredient is met with outright dismissal. Likewise, in Lau Kin Yu, the Court of First Instance voiced its disagreement with the proposition that “delay must have occurred together with restitution before a court can take the matter into consideration in deciding whether to suspend or reduce a sentence.”
66
In Chan Chun-ming, Deputy Judge Bruce refused to treat “rehabilitation [as] pre-requisites for the consideration of delays as a mitigating factor”.
67
In his opinion, it is only a highly relevant factor.
Like the fairness limb, the rehabilitation limb is plagued by a distinct set of conceptual problems, succintly summarised by Bagaric in his article. He lamented that, The key aspect about the rehabilitation limb is that the consideration that is driving the relevant inquiry and potential penalty adjustment is the extent to which the offender has reformed their mindset. However, there is no necessary nexus between delay and rehabilitation. Delay is simply a vehicle which can sometimes facilitate the rehabilitation of an offender. And importantly, rehabilitation is itself a well-established, distinct mitigating factor.
68
Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and past misdeeds and his establishment or re-establishment as a law-abiding citizen. The ultimate object of the courts is to fashion sentencing measures designed to bring back into the fold an offender as a law-abiding citizen wherever such measures are consistent and compatible with the primary object of the criminal law which is the protection of the community.
73
However, as McWalters and Zervos JJA highlighted, in order for the court to give due credit to rehabilitation, the offender must have shown that he has dissociated himself from his past wrongful conduct, and has committed himself to the future respect of the law. Where an offender has reformed and is not likely to reoffend, he is deserving of a sentencing option or measure that is appropriate for the category of the offence, and that also provides the means for his rehabilitation.
74
These classic rehabilitative considerations, which are also flagged in the Singaporean and Australian authorities discussed above, bear no intrinsic linkage with delay. While it is no doubt possible that the accused may capitalise on the pre-trial delay to re-order his or her life and purge it of any further criminality, what ultimately impel the courts to impose a lighter penalty are the act of and the consequences that flow from rehabilitation itself rather than the delay. Put simply, it is the “results of that rehabilitation” 75 that justify a lighter sentence in order to not frustrate the “real prospect that he may, with time, be fully rehabilitated”. 76 The delay merely creates the enabling temporal condition or “backdrop” 77 for these rehabilitative considerations to assume relevance. The suggestion that it is the delay itself, rather than genuine remorse or strategic considerations, that induces or begets rehabilitation seems rather improbable. The pertinence of delay lies only in the fact that it provides “the instrumental basis through which a well-established sentencing aim assumes relevance in sentencing process”. 78
As a free-standing mitigating factor, the sentencing courts are fully entitled to take into account rehabilitative considerations notwithstanding the absence of delay.
79
As Bagaric wrote, “if a court finds that an offender has demonstrated strong progress towards rehabilitation, the offender will get the same discount whether they are sentenced one year or 10 years after the offence”.
80
He continued, Delay, at best, is the backdrop against which rehabilitation or remorse occur, but it is a legally irrelevant backdrop. There is no need to call-in delay to mitigate sentence. This is demonstrated by the inescapable reality that (i) rehabilitation and remorse are stand-alone mitigating factors, and (ii) there is no suggestion that these considerations mitigate more powerfully when contrition or rehabilitation occur a long time after the offence.
81
Looking at this criticism from another angle, restitution and rehabilitative efforts are just some of the many types of post-offence conduct that the sentencing courts are entitled to take into consideration, both as aggravating and mitigatory factors. 82 In Wong Hung-biu, the fact that “[the accused] has made efforts to rehabilitate himself which have been successful” 83 was given due credit by the Court of Appeal in the absence of any identifiable pre-trial delay. Likewise, the same Court in Fung Yu Ming acknowledged the accused's efforts to “establish himself in a fairly respectable style of life” 84 since the commission of the offence. However, in neither case did the post-offence conduct take place during delay.
To conclude, rehabilitation bears no intrinsic linkage with delay. Even without it, sentencing courts remain fully entitled to take into account rehabilitative considerations in order to fashion an appropriate sentence. The delay provides nothing more than a “backdrop” for these rehabilitative considerations to become relevant. For that reason, the rehabilitation limb is both doctrinally and conceptually unsound.
Public Interest
Public Interest as a Doctrinal Basis: An Exposition
In Chan Chun-ming, Deputy Judge Bruce sought to explain the rationales underlying pre-trial delay: There is a high public interest in bringing those (such as the accused in this case) who are charged with serious criminal offences to justice without delay. There is a high public interest in ensuring that such person are to be justly punished according to settled principles. There will be cases where an entirely appropriate sentence might be adjusted downward to reflect unexplained and unreasonable delay.
85
Here, Deputy Judge Bruce made reference to two “high public interests”. The first is the public interest in speedy trial and the timely delivery of justice (i.e. timeliness), while the second is grounded upon the public's crave for a just punishment for the accused (i.e. fairness or justice). Regrettably, Deputy Judge Bruce did not capitalise on the opportunity to elaborate further what comprise these “high public interests”, and why and how these “high public interests” warrant a reduction in sentence. This unfortunately and inadvertently weakens the cogency of the Deputy Judge's suggestions.
Consider the first “high public interest”. Trial without delay is an indispensable safeguard in our criminal justice system. 86 It is accorded constitutional protection under art. 87(2) of the BL and is statutorily codified in art. 11(2)(c) of the HKBOR. While Deputy Judge Bruce did not make clear in his dictum why the timely delivery of justice is a matter of public interest, it is not difficult to conjecture why that is the case. First, for justice delayed is justice denied, the public have an intrinsic crave for justice to be served speedily and that offenders are held responsible for their criminal wrongs as soon as possible. As Sears J remarked in the early stages of the HKBOR's implementation back in 1991, “[d]elay in the trial of criminal charges should be a matter for public concern.” 87 His remark is no less applicable today.
Second, there is a utilitarian dimension to timeliness. Speedy trials conserve judicial resources and in turn speed up the criminal justice process. This is often emphasised in the context of entering a timely guilty plea for which the accused may be entitled to a sentence reduction, such as a one-third discount if the defendant pleads guilty at the earliest available opportunity.
88
Consider the following paragraphs authored by Kirby J sitting in the High Court of Australia that are oft-cited by Hong Kong courts (although not in the context of pre-trial delay): The main features of the public interest, relevant to the discount for a plea of guilty, are ‘purely utilitarian’. They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service …
… it is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt. Doing this helps ease the congestion in the courts that delay the hearing of such trials as must be held. It also encourages the clear-up rate for crime and so vindicates public confidence in the processes established to protect the community and uphold its laws. A plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered. Especially in cases of homicide and sexual offences, a plea of guilty may spare the victim or the victim’s family and friends the ordeal of having to give evidence. 89
In other words, because of the range of benefits that result from timely guilty pleas and speedy resolution of criminal cases, the court “as a matter of policy” 90 would award a sentence reduction “because it is in the public interest to do so”. 91 To phrase it differently, since the timely delivery of justice is an intrinsic good valued by the society writ large, voluntary steps taken by the accused that are conducive to the realisation of this principle ought to be rewarded on utilitarian grounds.
The second “high public interest” involved is the public desire for a just (or fair) punishment. It does not take a stretch of imagination to understand why the public would yearn for the imposition of a sentence that is commensurate with “not just … the seriousness of the offences and the culpability of the offender, but also … the circumstances of the offender”. 92 A fair and just sentence may also help maintain confidence in the administration of justice, and further the important sentencing objective of “protection of the community”. 93 As to what can properly be regarded as a “just” punishment, Deputy Judge Bruce stated that the sentence has to be determined “according to settled principles”, and in the instance of an unexplained delay, “an entirely appropriate sentence might be adjusted downward”. 94
Public Interest as a Doctrinal Basis: The Problems
The problems associated with this “public interest” rationale, which stem partly from the Deputy Judge’s refusal to elaborate further, are easy to discern. Whilst there is no doubt that the timely delivery of justice and the imposition of a just punishment are matters that the public concern deeply about, it is not entirely clear whether and how this “public interest” rationale differs from or adds anything substantive to the fairness limb. The need to impose a just and fair punishment is just another way of describing the fairness limb. Glossing the fairness limb with the additional backing of “public interest” will not ratchet up its argumentative attractiveness. Likewise, the need for timely legal redress itself provides a free-standing doctrinal underpinning for delay, an argument that we will pursue in the next Section.
Delay per se
Delay per se as a Doctrinal Basis: An Exposition
A final and perhaps oft-overlooked doctrinal underpinning goes back to the very existence of unreasonable delay itself. In Lau Kin Yu, Deputy Judge Barnes commented that “significant and unexplained delay, per se, is a ground to pass a more lenient sentence”. 95 In other words, courts are concerned only with identifying “a delay which is substantially beyond such normal delay”, 96 the existence of which automatically warrants a reduction in penalty. It is not necessary to analyse the issue of delay through the lens of “unfairness” or point to any rehabilitative efforts for no such extra justification for the penal reduction is demanded. This is perhaps best captured by Stuart-Moore VP, who noted that “[t]he real question is whether there has been an unreasonable delay”. 97
This “basis” finds echoes in judicial practice. Sentencing judges often do not provide further reasons when appealing to this mitigating factor aside from noting the mere fact that a delay has occurred, 98 let alone highlighting any unfairness or mental anguish suffered by the accused. Awarding a sentence reduction on account of the delay is therefore assimilated into the “art” of sentencing and is now built into the “judicial experience and ‘feel’ whereby a judge takes an overall view of the matter and decides what minimum term is appropriate”. 99 To lay out this argument from a different angle, it could well be said that there is simply no doctrinal underpinning to begin with.
Delay per se as a Doctrinal Basis: The Problems
Intuitively attractive as it may sound, this view is unsound for the following reasons. First, this view cannot account for the cases in which the sentencing judges refused to pass a lighter sentence on sole account of the delay. As we have explored above, whilst it is generally accepted that it is not a must for the accused to rehabilitate, there are still disagreements as to whether unfairness is a compulsory ingredient. Dicta from the affirmative camp can be found, for example, in the case of Ho King Nang where the Court of Appeal cited with approval the suggestion that “[t]he court will also need to be satisfied that the delay has ‘resulted in unfairness to the accused’”. 100 Likewise, in Ma Kim Hung, the Court of Appeal endorsed the proposition that “a delay in bringing a prosecution (whether justifiable or not) does not in itself entitle an accused to a discount in sentence; the seriousness of a crime does not diminish with the passage of time.” 101 The fact that some judges remain adamant about the need to show unfairness casts doubt on the validity of this so-called “basis”.
Like in Hong Kong, there are conflicting authorities in Australia on whether “delay can mitigate even without evidence of a relevant change to the offender's circumstances”, as noted by Bagaric in his article. 102 In Scook v R, which was cited with approval by the Hong Kong Court of Appeal in Chiu Chi-wing, 103 Buss JA reckoned that whilst “[d]elay itself (mere delay) is not mitigatory”, it “may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the offender has made progress towards rehabilitation or other circumstances favourable to him or her have emerged.” 104 Sitting on the other side of the spectrum, the New South Wales Court of Criminal Appeal in Sabra v R endorsed the “proposition that delay can be relevant at a number of levels, and that it can operate to mitigate an otherwise appropriate sentence in the absence of evidence that it caused a particular change in an offender's circumstances.” 105
Second, the fact that only “unexplained”, “unusual”, “inordinate” or “unreasonable” delay, rather than “delay per se”, is capable of persuading a judge to pass a lighter sentence points to something deeper at work. Labelling the delay as unreasonable or inordinate presupposes that certain values or principles have been offended as a result of the delay, for the label of “unreasonableness” itself connotes a value judgement. This sits in obvious tension with the “doctrinal basis” postulated here for this “basis” implies there is no need to invoke other notions such as fairness. Indeed, these presupposed values and principles, whatever they might be, are precisely the rationales and doctrinal bases that underpin delay.
Third, this view may be based on an inchoate reading of Deputy Judge Barnes’ observation in Lau Kin Yu that significant and unexplained delay, per se, justifies a more lenient sentence. To understand fully the meaning of this statement, it is necessary to analyse it in light of and in conjunction with the immediately preceding sentence which forms the context in which the above statement is made. In the preceding sentence, Deputy Judge Barnes expressly rejected the proposition that the “delay must have occurred together with restitution”, 106 a point we have previously touched upon. Reading these two statements together as a whole, we argue, yields two interpretations. First, it may be argued that, since Deputy Judge Barnes confined the scope of the preceding statement to restitution and did not mention any issue of fairness, her observation should be interpreted narrowly to mean only that restitution is not a pre-requisite. Second, and in direct opposition to the first interpretation, it may be argued that, when Deputy Judge Barnes spoke of “significant and unexplained” delay, she already had issues of fairness in mind, such that her observation should be given a more expansive reading – that neither fairness nor restitution is a pre-requisite. Both readings are, in our view, plausible, though neither stands out. As a result, such interpretive ambiguity prevents us from reaching an analytically safe conclusion that Lau Kin Yu is a strong authority for the proposition that delay per se is the doctrinal underpinning.
Last but not least, as the imposition and extent of a proper sentence are extremely important to the accused for reasons that need no regurgitation, it would be wrong in principle, contrary to public expectation, and perhaps injurious to the integrity of our criminal justice system, if one succumbs to the claim that certain mitigatory factors need not be grounded in solid doctrinal bases. Just as the imposition of a “punishment (which is, after all, state coercion) necessitates some sort of justification”, 107 the precise form and extent of penalty, to be chosen among the many alternatives, also demand justification. A mature criminal justice system, in our view, ought not to abdicate this responsibility.
Towards a Coherent Doctrinal Basis: The Constitutional Right to be Tried Without Undue Delay
In the previous Section, we sought to explain why the rationales or doctrinal underpinnings for pre-trial delay posited in judicial discussion and the extant academic literature rest on shaky doctrinal foundations and cannot withstand analytical scrutiny. Recognising this undesirable state of the law, this Section ventures into proposing an alternative doctrinal basis – the constitutional right to be tried without undue delay, enshrined in art. 87(2) of the BL and art. 11(2)(c) of the HKBOR. We further consider how this basis can encapsulate, rationalise and give coherence to the other rationales articulated above. Last but not least, we examine how our argument applies in the context of the NSL.
Right to be Tried without Undue Delay as the Overarching Doctrinal Basis
The right to be tried without delay is constitutionally enshrined in art. 87(2) of the BL. The relevant part of the provision states: Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay …
108
By this provision, the entitlement to speedy trial is given constitutional protection. The same guarantee is furthermore statutorily codified in art. 11(2)(c) of the HKBOR, which reproduces an identical provision in the International Covenant on Civil and Political Rights (“ In the determination of any criminal charge against him, everyone shall be entitled … to be tried without undue delay …
109
Comparing the two provisions, art. 11(2)(c) of the HKBOR appears to be more specific for it states clearly that individuals enjoy a right to be tried without undue delay, whilst the same phraseology is not adopted in the BL. This difference aside, absent any conclusive determination that such represents a divergence in scope and meaning, 110 and considering the commonsensical understanding that normal delay in the criminal justice process is inevitable and not inherently objectionable, this article proceeds on the premise that delay in art. 87(2) of the BL can be construed to mean undue delay.
We contend that the right to be tried without undue delay provides an overarching doctrinal basis for pre-trial delay as a mitigating factor. It also encapsulates, helps rationalise and gives coherence to the other rationales such as fairness and public interest.
This constitutional right is an important safeguard in the criminal justice process. An accused may argue that the denial of a speedy trial amounts to a breach of this constitutional right and ask for a remedy that is “just and appropriate according to its particular circumstances”. 111 The accused may, for example, ask for a permanent stay of proceedings. 112 It has been said that “[i]n a suitable case the court will say enough is enough and grant a permanent stay”, although there is “no reason why the axe must invariably be the first tool”. 113
In Lee Ming Tee, one of the few cases in which the right is engaged, the Court of First Instance took the opportunity to address the issue of an appropriate remedy. Other than a permanent stay, Tang J cited with approval Lord Bingham's “overwhelmingly persuasive” 114 view in Attorney General's Reference (No. 2 of 2001) that “[i]f the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant.” 115
The position in England and Hong Kong mirrors that of New Zealand. In R v Williams, the Supreme Court of New Zealand explored the remedies available for a breach of s. 25(b) of the New Zealand Bill of Rights Act, which contains the equivalent guarantee of one's “right to be tried without undue delay”. 116 Wilson J, writing on behalf of the majority, said “[t]he remedy for undue delay in an accused coming to trial must provide a reasonable and proportionate response to that delay … If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy.” 117 In that case, the appellant contended that the almost five years’ gap between his first arrest and eventual conviction after a fourth trial amounted to undue delay. 118 The Court eventually concluded that the “delay did not justify a stay and was more than adequately recognised in the reduction in sentence.” 119
These authorities clearly establish that penal discount is an in-built remedy that can be awarded when the court is convinced that there is a violation of the right. What the courts have been doing in the mitigation context, therefore, and without stating the explicit, is simply to give effect to this fundamental right at the sentencing stage. By awarding a sentence reduction on account of the inordinate delay, judges are compensating the accused for a potential (or even actutal) violation of this constitutional right coated in the language of mitigation. The fact that the accused opted not to challenge the constitutionality of the delay, for whatever reasons, should not preclude the sentencing courts from abiding by their constitutional obligation to give effect to this entitlement as far as possible. The lack of any constitutional challenge also means that awarding a mitigatory reduction in sentence is a readily available alternative and an isomeric substitute for the constitutional remedy Tang J mentioned.
The remit of the right to be tried without undue delay does not only encompass pre-trial delay. Indeed, in some of the decisions visited above, the courts were concerned with types of delay other than undue delay. One may, on this basis, question whether these foreign judicial opinions are of any referential and comparative value at all. 120 Whilst acknowledging this potential rejoinder, we argue that it by no means undermines the force of our argument for two reasons. First, pre-trial delay remains a common type of delay complained by litigants, no matter in Hong Kong or in other jurisdictions. Second, Hong Kong case law shows that other types of delay equally warrant a sentence reduction. They include, for example, the time elapsed between the imposition of a sentence after trial and a review of that sentence, 121 and a delay in the delivery of an appeal decision after a hearing. 122 Hence, even in the context of mitigation, the scope of delay is not confined to the archetypal scenario of pre-trial delay, but encompasses many other forms of delay that can occur throughout the pre-trial, trial and appeal processes. If these other types of delay can similarly justify a penal discount, then it cannot be realistically argued, on the ground of comparability, that the foreign judicial opinions cited are of limited referential value.
There remains one issue to be addressed. It has not been explored or judicially settled whether the notion of delay, understood in the context of mitigation, is identical to that used in the context of the HKBOR or BL. Proceeding on this basis, one may argue that the type of undue delays which warrants sentence discounts may not be constitutionally objectionable, although we nevertheless contend that, in the converse, delays found to do excessive violence to the constitutional right will invariably suffice for the purpose of mitigation. In a similar vein, as acknowledged by Doherty JA sitting in the Court of Appeal for Ontario, “excessive delay which causes prolonged uncertainty for the appellant but does not reach constitutional limits can be taken into consideration as a factor in mitigation of sentence”. 123 The constitutional limits referred to by Doherty JA are inscribed in s. 11(b) of the Canadian Charter of Rights and Freedoms, a part of the Constitution Act 1982, 124 which guarantees that “[a]ny person charged with an offence has the right … to be tried within a reasonable time”. 125 It seems that, therefore, at least in Ontario, within the overarching category of “excessive delay”, “unwarranted delay and constitutionally unreasonable delay” are two different species. 126 The notion of “undue delay” in the mitigatory sense therefore cannot be equated entirely with “undue delay” in the constitutional sense.
Notwithstanding this proposition, the fact that a judge awards a sentence discount on account of an inordinate yet possibly constitutionally permissible delay does not mean he or she is not trying to give effect to the right. Very often, the accused would not go so far as to plead an infringement of this constitutional right, possibly to avoid unnecessary troubles and even further delays. The courts would therefore likely not have the opportunity to determine whether the delay in question is constitutionally objectionable or not. A judge's decision to nevertheless proceed with passing a lighter sentence is, however, not necessarily without constitutional imprints. In our view, in these circumstances, the imposition of a more lenient sentence can be viewed as an attempt to give effect, as far as possible, to this right in the absence of a concrete determination. Indeed, the protection of the right to be tried without undue delay, just like the protection of any other constitutional rights and freedoms, does not always need to take place against the backdrop of a breach. These rights and freedoms can always be strengthened ex ante beyond the constitutional minimum. Passing a lighter sentence on account of an inordinate yet constitutionally acceptable delay is just one example.
In conclusion, the right to be tried without undue delay as embodied in art. 87(2) of the BL and art. 11(2)(c) of the HKBOR provides a solid doctrinal – and constitutional – basis for the mitigating factor of pre-trial delay. In the instance where the court concludes that the right has been violated, it can of course proceed to reduce the penalty imposed provided that it is just and appropriate in the circumstances. However, in the situation where the accused does not take issue with the constitutionality of the delay in question, the decision to nevertheless award a sentence discount is just another avenue to give effect to that very right in the absence of a concrete determination. The same applies to the narrow yet conceivable category of cases in which the inordinate delay in question has yet to reach constitutional limits.
Relationship with other Rationales and the Implications
This subsection addresses one important implication that flows from our argument – the relationship between the new doctrinal basis and the other rationales found in judicial discussion and the extant academic literature such as fairness and rehabilitation canvassed above. The argument advanced so far suggests that the constitutional right to trial without undue delay provides the single overarching doctrinal basis for pre-trial delay. This may give rise to an impression that these other rationales or “doctrinal underpinnings” will then be eclipsed and lose their relevance entirely.
This conjecture, we contend, is too simplistic because it overlooks the jurisprudential nature and content of the right. A deconstruction of its jurisprudential nature and content suggests that, far from being relegated to irrelevance, these rationales will be subsumed and encapsulated in this new doctrinal scheme, better structured and with greater coherence.
The right to be tried without undue delay is a linchpin of international human rights law. As recognised by the United Nations Human Rights Committee, this right is underpinned by the notion of fairness for “[a]n important aspect of the fairness of a hearing is its expeditiousness”. 127 It is “not only designed to avoid keeping persons too long in a state of uncertainty about their fate and, if held in detention during the period of the trial, to ensure that such deprivation of liberty does not last longer than necessary in the circumstances of the specific case, but also to serve the interests of justice.” 128 Along similar lines, the House of Lords explicated that “[a] guilty defendant, facing conviction and punishment, should not have to undergo the additional punishment of protracted delay, with all the implications it may have for his health and family life.” 129 Likewise, the Hong Kong Court of Final Appeal asserted that, “justice delayed is justice denied. Justice is denied to the extent of the delay and its consequences. For people facing charges, justice comes, one way or the other, on the day when the charges are determined. If that day is delayed, the denial of justice to them is measured not only by the length of the delay but by also – and sometimes more so – the rigours of their predicament while awaiting judgment.” 130
It is clear from the foregoing observations that fairness is the kernel of the right to be tried without undue delay. One important facet of fairness is that defendants are shielded from, or at least compensated for, the anxiety and mental stress that arise as a result of being entrapped in protracted criminal justice processes. Two important implications follow. First, in determining whether the delay in question is inordinate, fairness is highly relevant. The length of delay alone does not dictate the calculus. Second, the same concerns of justice and fairness are likewise relevant in the determination of the appropriate sentence.
The second implication is manifested in s. 6 of the Hong Kong Bill of Rights Ordinance. The provision obliges the court to, upon a breach of the right to be tried without undue delay, “grant such remedy and relief … it considers appropriate and just in the circumstances”. 131 In other words, when choosing among the range of remedies available in the “box of tools”, 132 the court is expected to take into account fairness-related considerations. This helps rationalise existing case law in which the notion of fairness is expressly invoked to justify a penal reduction on account of the pre-trial delay.
Likewise, the relevance of rehabilitation is seen in the imperative for courts to arrive at a just punishment. It is often stressed that the sentencing object of rehabilitation plays a crucial role in the determination of a fair and just sentence. 133 For example, it may not be appropriate “to impose such a sentence on the defendant which might have the effect of discouraging and frustrating his rehabilitation”. 134 Ignoring these rehabilitative considerations, therefore, may lead to a sentence that is neither fair nor just. As a result, rehabilitation returns to the picture, not as an independent doctrinal basis, but as a component of fairness.
What is said so far also vindicates Deputy Judge Bruce’s statement concerning the “high public interests” in the speedy delivery of justice and the administration of a fair punishment in Chan Chun-ming. As a “minimum guarantee for everyone in full equality” that is “inherently important”, 135 it should not come as a surprise that, other than the accused, members of the public equally yearn for the rigorous enforcement of this constitutional right. That is why, such “high public interests” are still relevant in the equation.
To conclude, by recognising that the right to be tried without undue delay provides the ultimate and overarching doctrinal basis, all the other rationales that have been articulated but do not themselves qualify as independent doctrinal bases can be rationalised within one overarching doctrinal scheme.
But When does the Clock Begin to Run?
One final issue remains to be addressed before we can conclude with confidence that our argument is analytically defensible. This issue concerns how the length of delay is assessed, and in particular “when does the clock begin to run”. 136 As mentioned above, in many cases the alleged delay occurs in the context of a long lapse of time between a first and second arrest before a formal charge is laid. Whilst, in the ordinary course of events, the wait may be short for the prosecution to formally charge the accused after he or she is arrested again, the intervening period between the first and the second arrest may be glaringly long. However, authorities in Hong Kong seem to suggest that, for the purpose of calculating the length of delay in the context of art. 11(2)(c) of the HKBOR, the clock only starts running at the moment when a formal charge is laid. In other words, the time elapsed between the first and second arrest is irrelevant.
In Lee Ming Tee, Tang J, citing with approval the headnotes of Attorney General's Reference (No. 2 of 2001), concluded that “as a general rule the period will begin to run at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him, which would normally be the time when a defendant was formally charged or served with a summons rather than when he was arrested or interviewed under caution”. 137 If this represents the correct legal position, then it may be argued that the right to be tried without undue delay, insofar as its statutory embodiment in art. 11(2)(c) of the HKBOR is concerned, may not provide a solid doctrinal basis. The “undue delay” in the HKBOR context would not cover delays that occur as a result of a long lapse of time between a first and second arrest before a formal charge is laid. In such context, the judge may not find art. 11(2)(c) of the HKBOR a sound doctrinal basis, thereby leading to the exclusion of a large amount of cases from our argument. A gap in our argument would emerge consequently. To recontextualise this objection in another manner, the issue of undue delay in its mitigatory sense being different from its constitutional sense flares up again. Three points may be advanced in response.
First, it appears that Tang J's conclusion is based on an over-simplistic reading of Attorney General's Reference (No. 2 of 2001). In that case, the House of Lords were concerned with the interpretation of art. 6(1) of the European Convention on Human Rights (“
As this case is concerned primarily with the interpretation of a provision in the ECHR, it is instructive to take a closer look at Strasbourg jurisprudence on art. 6(1), some of which were cited in the House of Lords' judgment. According to the European Court of Human Rights (“
Hence, in deciding whether a person is “charged with a criminal offence”, the ECtHR is not bounded by how a charge is defined in the domestic legal systems of the Contracting Parties. Lord Bingham's conclusion that a person is “ordinarily” charged within the meaning of art. 6(1) of the ECHR “when he is charged or served with a summons” 146 is only one of the many possibilities and is specific to England and Wales. It may not necessarily apply across the board to other Contracting Parties. Aware of the context-specificity of his conclusion, Lord Bingham expressed his wish that this formulation may help “[give] effect to the Strasbourg jurisprudence but may (it is hoped) prove easier to apply in this country”. 147
What, then, may be considered as a “criminal charge” within the “autonomous” meaning of art. 6(1) of the ECHR? The overarching benchmark, according to the ECtHR, is whether “the situation of the [suspect] has been substantially affected”. 148 This was correctly identified by Lord Bingham in his opinion in Attorney General's Reference (No. 2 of 2001) as well. Applying this benchmark, a charge may arise at the time of the accused's arrest, 149 the accused's questioning as a witness, 150 and of course when the accused is procedurally or formally charged by the law enforcement authorities of the state. 151
Returning to the analysis of Tang J in Lee Ming Tee, it is clear that he did not take note of this definitional nuance. Neither was he aware of the context-specificity of Lord Bingham's conclusion in Attorney General's Reference (No. 2 of 2001). Instead, Tang J adopted the headnote of the case as well as the definition in cases like Deweer v Belgium and McFarlane v Ireland without explaining why they can be transposed onto the HKBOR context, which does not bear full resemblance to the ECHR regime. Indeed, Lord Bingham emphasised that his conclusion is specific to England and Wales, explicitly advising against “[laying] down any inflexible rule” 152 in resolving this issue. That is why the persuasiveness of Tang J’s reasoning is open to doubt. For these reasons, we argue that the “general rule” in the assessment of the relevant time period for the purpose of determining delay remains unsettled in the HKBOR context.
Second, subsequent authorities have not demonstrated fidelity to Tang J's view, although such departure is not explicitly acknowledged. Consider Chong Wai Lee Charles v Insider Dealing Tribunal. There, according to the Court of First Instance, the criminal charge arose at the time when the event subject to the tribunal's inquiry first occurred, but not when the accused was formally charged. 153 This clearly runs contrary to Tang J's dictum in Lee Ming Tee.
Third, the proposition that the time between the first and second arrest should be taken into account in the determination of delay in the constitutional sense is supported by the text of art. 87(2) of the BL. The relevant parts of the provision read: “Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay”. 154 It is clear from the text that the right to fair trial without delay in criminal proceedings is enjoyed not only by those who are formally charged, but also those who have been lawfully arrested. As an arrest precedes the laying of a charge, the pool of arrestees must be larger in comparison for not all arrestees would be charged eventually. This points strongly to the proposition that it cannot be tenable as a matter of interpretation that the clock only begins to run at the time when the arrestee is formally charged, for he or she will then be deprived of the said constitutional protection during the intervening period.
Article 87(2) of the BL can be contrasted with art. 11(2) of the HKBOR, which belongs to a larger set of provisions in the HKBOR grouped under the rubric of “rights of persons charged with or convicted of criminal offence”. 155 As a matter of literal reading, the protection available under art. 11(2) of the HKBOR is afforded only to those that are charged, although as we have argued the precise meaning of “charge” remains unsettled. As mentioned above, while it has not been judicially confirmed that the scope and content of “the right to be tried without delay under art. 87 of the [BL] should be any different from that under art. 11(2)(c) of the [HKBOR]”, 156 this brief comparison may nevertheless capture one of the oft-overlooked subtle differences. A brief detour to another provision – art. 5(3) of the HKBOR – may help further illustrate our argument. The provision states that “[a]nyone arrested or detained on a criminal charge … shall be entitled to trial within a reasonable time or to release”. 157 This provision, which replicates an identical guarantee in the ICCPR, is concerned with, according to the United Nations Human Rights Committee, “periods of pretrial detention, that is, detention between the time of arrest and the time of judgment at first instance”. 158 While art. 5(3) is concerned with pre-trial detention that differs from delay, the wordings provide a good focal point for comparison. Article 5(3) specifically draws a difference between “arrestees” and those who are “detained on a criminal charge” (i.e. charged). This points to the fact that, under the HKBOR, arrestees and those who are charged are indeed two different categories of persons.
It is in this context that we argue, no matter as a matter of common sense or by reading the provisions in the BL and HKBOR together as a whole, the constitutional safeguard in art. 87(2) of the BL must be afforded to all arrestees, whether or not they are charged, for the plain and unambiguous meaning of the text must prevail. 159
Taken together, even if it is true that the clock only begins to run at the time when the accused is formally charged within the meaning of art. 11(2)(c) of the HKBOR, to which we have already expressed our objections, art. 87(2) of the BL makes it clear that this is not the case on a true construction of the provision. The right to be tried without undue delay is enjoyed not only by those who are charged, but also those who are arrested. Proceeding on this basis, with confidence we conclude that the time period for the purpose of assessing delay begins to run at least at the time when the accused is arrested or first arrested (if he or she is subject to subsequent arrests at a later time). This right, therefore, does provide a sound and coherent doctrinal and constitutional basis for delay as a mitigating factor to be grounded upon.
Prosecutorial Delay in the Context of the Hong Kong National Security Law
Last but not least, we consider whether and how our argument applies in the context of the NSL, an infant regime introduced into Hong Kong's criminal justice system not long ago. 160 The issue of pre-trial delay has taken on a heightened significance since the enactment of the NSL. That is because a number of high-profile arrestees charged with national security offences have yet to stand trial, despite being remanded in custody for more than a year.
The NSL, enacted by China's National People's Congress Standing Committee in June 2020 and promulgated locally in Hong Kong shortly afterwards, criminalises a series of acts including subversion, terrorism, collusion with foreign forces and secession. 161 Since the law came into force, a number of prominent personalities have been arrested and charged. Among them include media tycoon Lai Chee Ying, who was arrested by the national security police in August 2020; and 47 pro-democracy opposition figures involved in an unofficial Legislative Council primary election, all of whom were formally charged in February 2021.
At the time of writing, none of these individuals have yet to stand trial. The delays have, unsurprisingly, attracted considerable criticisms and dismay from the public and even the courts. For example, Toh J took the opportunity to express, in her decision refusing bail to one of the 47 opposition figures, her concern with the “long delay in the proceeding being brought to trial”, 162 contributed by the fact that “[t]he Defendants in this case, along with the Applicant, had been in pre-trial custody for a year.” 163
Having laid out the background to the issue, we now turn to consider whether and how our argument applies in the context of the NSL. In particular, we seek to address the issue of whether those who may be convicted of national security offences will be entitled to a sentence reduction on account of the pre-trial delay. In our view, we see no cogent and legally-grounded reason why they cannot continue invoking this mitigating factor. Two main reasons are offered in support of this proposition.
First, as made clear under art. 41 of the NSL, existing laws governing criminal procedure and sentencing are preserved in their application in national security cases. The provision reads: This Law and the laws of the Hong Kong Special Administrative Region shall apply to procedural matters, including those related to criminal investigation, prosecution, trial, and execution of penalty, in respect of cases concerning offence endangering national security over which the Region exercises jurisdiction.
164
This provision evinces a clear intention on the part of the Standing Committee of the National People's Congress that the NSL is “to operate in tandem with the laws of the HKSAR, seeking ‘convergence, compatibility and complementarity’ with local laws”. 165 No part of the local laws is to be displaced unless they are inconsistent with the NSL. 166 Existing laws governing sentencing continue to apply by default. As the Court of Appeal made clear in a sentence review decision, “[u]nless there are provisions [stating] otherwise in the NSL, the corpus of laws on sentencing adopted in the HKSAR shall apply. If there is any inconsistency, the relevant provisions of the NSL shall apply in accordance with NSL 62”. 167 The crucial question, therefore, is whether provisions in the NSL have altered the existing state of the law in a way such that offenders convicted of national security offences can no longer appeal to pre-trial delay in mitigation.
Indeed, the NSL contains provisions that address the sentencing of offenders convicted of national security offences. 168 Some more general principles relating to the imposition of penalty are also set out in Part 5 of Chapter III. For example, under art. 33, a lighter penalty may be imposed if an offender voluntarily surrenders himself 169 or reports on an offence committed by another person. 170 In spite of these modifications and additions, on a close reading of the NSL, it is clear that no part of it has expressly or by implication abolished the mitigating factor of pre-trial delay, or is otherwise inconsistent with the continued application of this mitigating factor.
As a result, any suggestion that the mitigating factor of delay has been abolished in the context of the NSL is at best dubious. Those who are convicted of national security offences will continue to be able to ask for a reduction in sentence on account of the pre-trial delay.
Our contention is moreover buttressed by our argument in support of an alternative basis laid out above. To reiterate, we argue that the decision to award a sentence reduction on account of the delay is an avenue for judges to give effect, as far as possible, to the constitutional right to be tried without undue delay as enshrined in the BL and the HKBOR. This argument finds equal force in the NSL context and provides an alternative explanation as to why this mitigating factor is not abolished.
Consider, first, art. 4 of the NSL. Relevant parts of the provision state that: Human rights shall be respected and protected in safeguarding national security in the Hong Kong Special Administrative Region … the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.
171
Without doubt the right to be tried without undue delay is one of the human rights that fall within the scope of art. 4. This right is moreover expressly replicated in the NSL. Under art. 58(2), A criminal suspect or defendant who is arrested in accordance with the law shall be entitled to a fair trial before a judicial body without undue delay.
172
According to the Court of Appeal, art. 4 of the NSL “mandates respect for and protection of rights and freedoms which the residents of the HKSAR enjoy under the Basic Law and the ICCPR as applied to Hong Kong”, 173 one of which is of course the right to be tried without undue delay replicated in art. 58(2). In the context of NSL bail applications, the Court of Final Appeal held that art. 4 imposes on courts the obligation to ensure that “those rights, freedoms and values are to be protected and adhered to in applying the NSL”. 174 That is why, in NSL cases, judges are not absolved of their responsibility to give effect to the fundamental human rights contained in the BL, HKBOR and ICCPR, including the right to be tried without undue delay.
If this represents a correct interpretation of the NSL, then there is no reason why the sentencing courts are forbidden from passing lighter sentences on account of the delay in order to give effect to one of these human rights.
It is noteworthy to also refer to art. 42(1) of the NSL, which imposes on the law enforcement and judicial authorities an obligation to ensure that cases concerning offence endangering national security are handled in a fair and timely manner so as to effectively prevent, suppress and impose punishment for such offence.
175
This provision complements arts. 4 and 58(2), a combined reading of which places beyond doubt that the accused must enjoy the right to speedy trial or trial without delay.
Of course, the foregoing discussion is premised on the assumption that the delay in question is indeed “unreasonable” or “inordinate”. If the alleged delay is eventually found to be nothing out of the ordinary, then of course the accused will not be able to ask for a lighter sentence on account of it. Commenting on the issue of delay, the former Secretary for Justice alluded to “a multitude of factors” that would affect the time taken to bring the defendants to trial such as “whether further investigation is required, whether the defendant needs time to obtain legal advice for consideration of his/her plea and to engage in plea negotiation with the prosecution, whether the defence requires certification of translated documents or makes any pre-trial application”. 176 Likewise, the Chief Justice of the Court of Final Appeal in a press conference cautioned against sidestepping procedural safeguards “for the sake of having a speedy trial”, 177 when asked about delays in NSL cases. Hence, despite the criticisms and dismay voiced by the public and the courts, whether offenders convicted of national security offences will receive a lighter sentence on account of the delay remains uncertain.
Conclusion
This article demonstrates that the rationales and doctrinal underpinnings sentencing courts commonly appeal to in order to justify a sentence reduction on account of a pre-trial delay, grouped under the rubrics of fairness, rehabilitation, public interest and delay per se, are all analytically incoherent, doctrinally unsound, and conceptually deficient. This is no doubt an undesirable state of affairs given how frequent sentencing courts invoke this mitigating factor and the high stakes that accompany it. Absent a coherent and sound doctrinal underpinning, the operation of this mitigating factor will continue to rest on shaky grounds.
We propose that, instead of appealing to labels such as fairness, coherence would be achieved by recognising that the constitutional right to be tried without undue delay, as embodied in art. 87(2) of the BL and art. 11(2)(c) of the HKBOR, provides the ultimate and overarching doctrinal basis for pre-trial delay as a mitigating factor to be grounded upon. This additionally provides the much-needed coherence to the aforementioned rationales.
Furthermore, in the context of the NSL, we contend that there is no sound reason why offenders convicted of national security offences will no longer be able to ask for a reduction in sentence on account of the pre-trial delay. This is because existing laws governing criminal procedure and the execution of penalty are expressly preserved in their application. The obligation placed on courts to give effect to human rights, in particular the right to be tried without undue delay that is singled out for mention in art. 58(2) of the NSL reinforces the same conclusion.
Ultimately, it is hoped that this article may yield a modest contribution to the emerging academic discourse on the various aspects of pre-trial delay as a mitigating factor, and that the doctrinal analysis conducted, although based primarily on Hong Kong law, may prove useful for future comparative analysis.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.