Mitigation in Magistrates’ Courts Proceedings in Hong Kong

The Magistrates’ Courts in Hong Kong deal with criminal cases. They also deal with summonses issued by a Magistrate as a result of information laid by public bodies such as the Labour Department, the Companies Registry and the Securities and Futures Commission, involving quasi criminal offences. Corporate clients including directors of the companies may therefore find themselves in the Magistrates’ Courts. The most common summonses that the Magistrates’ Courts deal with include industrial safety summonses and summonses in relation to breaches of the Companies Ordinance. This article gives a brief introduction to the mitigation process in the Magistrates’ Courts in Hong Kong.

As discussed in our article “Magistrates’ Courts Proceedings in Hong Kong” in our June 2014 newsletter, the plea in mitigation takes place after a defendant is convicted of the offence, either on his/her own guilty plea or after trial.  A defendant will usually get a one-third discount on sentence if he/she pleads guilty.  The rationale behind this is that a guilty plea saves the court’s time and public money in calling witness(es) to testify in a contested trial.

The magistrate usually takes into account the following mitigating factors during sentencing:

1. Age of the defendant – the younger the defendant, the less likely that the court will impose a custodial sentence. However, custodial sentences are unavoidable in respect of serious criminal offences.
2. Assistance to law enforcement – a further discount on sentencing is given to those who have assisted law enforcement e.g. by testifying for the prosecution.
3. Clear record – a clear criminal record may indicate that a defendant’s commission of crime was out of character. However, those involved in commercial fraud can expect immediate imprisonment despite a clear record. On the other hand, if a defendant has previous convictions, this constitutes an aggravating factor in sentencing.
4. Confession to offence – if a defendant confesses to an offence of which the authorities were not aware, the court may consider this as a mitigating factor.
5. Entrapment – entrapment is not a defence to a criminal offence. However, if a defendant is encouraged to commit an offence which he/she would not otherwise have committed, the court would likely treat that as a mitigating factor.
6. Family and financial circumstances of the offender – usually the court will look into the family and financial situation of a defendant before sentencing.
7. Forgiveness – if the victim of a crime forgives the defendant, this may have a positive effect on sentencing, in some circumstances.
8. Positive good character – this is conduct of the defendant of a positive nature e.g. doing charity work or service to the community.
9. Remorse – pleading guilty at the very first opportunity and apologising to the victim, i.e. showing remorse.
10. Restitution – full restitution to the victim of commercial crime cases and repayment of any ill-gotten gains are mitigating factors.

The above mitigating factors are not exhaustive. The Magistrates’ Courts usually impose fines against companies found guilty under summonses. In such cases, the magistrate is eager to know whether the defendant company has any previous criminal record, the financial circumstances of the defendant company, as well as the reasons for committing the offence. Given that the Magistrates’ Courts have to deal with an enormous number of cases each day, although there is no restriction on how long a plea in mitigation is, it is preferable to keep it concise.

In some circumstances, a “letter of mercy” may help. Such letter may be used to show that the commission of the offence was “out of character” for the defendant. It may also help the magistrate to understand the background and personal history of the offender.

There is a well-known quote, namely that: “Sentencing is an art rather than a science”. Anything which can show that an offender has been rehabilitated after the offence and that the impact of the offence on the victim is minor should be made known to the court for sentencing purposes. In any event, the safest way to deal with sentencing is to seek legal advice from a relevant legal advisor who can identify all relevant mitigating (or aggravating) factors.