Agenda Item Five
A Hong Kong Perspective on Punishment and The Treatment of Offenders
LAW Kwan Wai, Thomas
Senior Assistant Director of Public Prosecutions
Department of Justice
Hong Kong Special Administrative Region
People's Republic of China
1. The criminal justice system of the Hong Kong Special Administrative Region seeks, as a matter of penal policy, to achieve an appropriate balance between punishment and rehabilitation. The crime, that is, must be punished. But the offender must not be deprived of hope.
Objectives of punishment
2. Criminologists recognise the link between crime and punishment.
It is axiomatic that wrongdoers should be condemned and punished
for their wrongdoing. But there is a balance to be struck. It
is always incumbent upon a court to decide whether to pass a
sentence which is lenient or severe. There are invariably competing
factors at work.
3. Few would seriously dispute the proposition that the more severe the damage caused by the wrongdoer, the more severe the punishment should be. In other words, the punishment should be proportionate to the harm done - a notion that is consistent with justice and the principle of equality. So where the degree of responsibility of two wrongdoers is similar, the principle of equality requires that they should receive similar sentences.
4. However, it is also recognised that, contrary to the equality approach, the severity of the sentence may vary with the locality in which, or the time at which, the offence is committed. So two persons who share the same guilt but act in different places or at different times may receive different sentences. For the protection of the public, the court might be prepared to impose or uphold a more severe penalty where or when the offence is prevalent. So the principles of justice and equality are to a degree subject to the necessity to protect the public. Sentencing, that is, may be hedged around with imponderables. It is an art not a science. It is not always possible to be guided by absolutes.
5. It is not uncommon for the courts to impose exemplary or deterrent sentences. This means that the judge may sometimes enhance the usual sentence in order to deter others. The punishment of A in order to deter B, C and D from the crime may be open to the criticism that it is unjust, but, in the cold light of day, it can be justified. In such circumstances, the judge is simply placing his sentence in a broader social context. He is deciding that the apparent grievance of the criminal is outweighed by the consequences to the public of a further increase of the crime in question. In such cases, the judge qualifies customary approaches to sentence in the wider interests of public safety. That is a wholly legitimate reaction from the courts to whom citizens look for security. In any event, it is axiomatic that the sentence must fit not only the offender but also the offence.
6. In contrast to the deterrence approach, which assumes significance if the offence is prevalent or grave, or if the defendant is a recidivist, courts are usually inclined, where possible, to take a lenient approach towards juvenile (or first) offenders. "What is the best thing to do in the interests of the community, bearing in mind that the offender remains a member of the community?" - this is invariably the question that judges ask themselves when considering the appropriate sentence for young (or first) offenders. In such cases, the judges are prone to take the view that corrective training or a sentence intended to promote rehabilitation is in the interests of both the public and the offender. But what of recidivism?
7. It is true that recidivism precludes lenient sentences if it is persistent and reveals that earlier penalties have not been effective in preventing criminal behaviour. The need for more severe penalties arises, however, not so much for the purpose of renewing the earlier punishment, but as a further step in the search for a measure which will have some effect in bringing about law-abiding behaviour. Prison is meant, amongst other things, for the punishment of the offender and not as a convenient sort of hostel to incarcerate miscreants. But even in the case of the recidivist, society retains the hope that, despite the failure of earlier attempts, there are still prospects of rehabilitation. The penal system cannot, however tempting it might be, simply give up on such people.
8. In light of the relevant,
competing considerations, it is perhaps appropriate to summarise
the objectives of punishment as follows:
(a) to punish the offender for the harm done to the individual
or to society;
(b) to deter the offender and other potential offenders from
committing future offences;
(c) to reform or rehabilitate the offender to reduce the risk
of a future offence; and
(d) to protect the society.
Public safety
9. Few people ask what benefits these objectives will bring about.
One should not set an objective without a full appreciation as
to what the result will achieve. When one refers to the objectives
of punishment, whether to protect society from the persistent
offender, to deter the potential offender, to deter or rehabilitate
the individual offender, one should ask: What will they achieve?
What benefits are they intended to bring about to society? The
answer must be - public safety.
10. So, to put it bluntly, as Samuel Johnson once observed, the security of the public is the principal end of public punishment.
Importance of Correction and
Rehabilitation to Public Safety
11. Most offenders may expect at some stage eventually to return
to society. They will pose a danger to the public safety should
they return as hardened criminals. It serves no public interest
to run a penal institution simply as a place where offenders
are confined together, as it will inevitably turn itself into
a school of crime. Prisoners need to be remoulded so that, upon
release, they will be able to make some sort of positive contribution
to society.
12. Modern penal thinking recognises that the objectives of incarceration go well beyond keeping the prisoners out of circulation in a secure environment. Although penal administration cannot guarantee to release offenders as better citizens, there is undoubted force in the view of Shen Jiaben, a minister in charge of drafting laws in the late Qing Dynasty, that prison ought to be regarded as a place to teach and help misguided people to change through persuasion.
13. Penal institutions are now therefore expected to have in place constructive programmes designed to correct offending behaviour of inmates and to prepare them for re-integration into society upon release. They should equally design positive programmes to counter the dangers of moral, mental or physical deterioration on the part of offenders, as such dangers are inherent in prolonged incarceration in a penal environment. It is vital that the criminal should not emerge from prison more hardened in his ways than when he entered.
14. It is certainly in the interests both of the offender and of society for the offender to return to society as a reformed and useful citizen. If by corrective training or rehabilitation programmes, an offender acquires a sense of social responsibility and develops into a more rule-abiding person, then crime prevention will be achieved and society will thereby benefit. If by a rehabilitation programme delinquents who have strayed can be corrected or cured, thereby improving their life prospects and making the streets safer for society as a whole, there must be every justification to support such schemes.
15. As regards the principle of rehabilitation, one social commentator observed in a Hong Kong newspaper:
"The greater the success of attempts at rehabilitation, the less the costs to Hong Kong in terms of repeat offenders. But rehabilitation has to be seen as a broad-based exercise that starts in jail with the realisation by convicted criminals that it is better to go straight, and which then continues beyond the prison gates when they are released. In this process, there is certainly the need to exercise 'correctional' punishment, but there must also be an educational procedure which equips prisoners for a legal life once they return to mainstream society."
16. So successful rehabilitation will not only enhance public safety, but will also reduce the increasing burden to society in terms of cost. It will reduce the rate of recidivism, the high costs incurred by the criminal justice system in terms of investigation, prosecution and legal aid, the size of the prison population, the number of custodial institutions as well as the price of the maintenance of offenders.
Emphasis on Rehabilitation in
Hong Kong
17. Hong Kong has developed over the years a penal system which
places increasing importance on corrective and rehabilitative
measures for inmates. Comprehensive treatment and training programmes
have been developed for all types of prisoner, and particularly
for young offenders, drug dependants, first offenders and even
recidivists, all aimed at their ultimate re?integration into
society.
18. Symbolically, on 1 February 1982, the "Prison Department" was renamed as the "Correctional Services Department" (CSD) to reflect the expanding programme of activities and the increased emphasis on offenders' rehabilitation.
19. Before examining the relevant programmes, it should be noted that, in Hong Kong, the law has expressly provided that the treatment of prisoners shall have as its aim their reformation and rehabilitation. Article 6(3) of the Hong Kong Bill of Rights Ordinance, Chapter 383 of the Laws of Hong Kong provides as follows:
"The penitentiary system
shall comprise treatment of prisoners the essential aim of which
shall be their reformation and social rehabilitation."
Dominance of rehabilitation policy in penal legislation
20. Even where serious or heinous crimes are committed, the community is best served in the longer term if the court can impose a sentence that may effectively rehabilitate juvenile delinquents. That said, if the crime is very grave, deterrence may become the ultimate sentencing consideration.
21. In Hong Kong, the sentencing policy on juvenile and young offenders is clearly directed towards rehabilitation rather than just deserts, retribution or deterrence. This policy is reflected in legislation which places restrictions upon the courts sending young offenders to prison.
22. The Juvenile Offenders Ordinance, Chapter 226 of the Laws of Hong Kong, provides that no young person (that is, a person under the age of 16 years) shall be sentenced to imprisonment if he can be suitably dealt with in any other way.
23. The Criminal Procedure Ordinance, Chapter 221 of the Laws of Hong Kong, has also placed a restriction on imprisonment of persons between 16 and 21 years of age. Section 109A of that Ordinance, subject to certain excepted offences, provides that:
"No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition."
24. Therefore, in appropriate circumstances, in the best interests of the community and of the offender, the court, instead of sending the offender to prison, may make one of the following orders:
(a) a probation order (under
the Probation of Offenders Ordinance, Chapter 298 of the Laws
of Hong Kong) requiring the offender to be under the supervision
of a probation officer for a period to be specified in the order
of not less than one year nor more than three years;
(b) a community service order (under the Community Service Orders
Ordinance, Chapter 378 of the Laws of Hong Kong) requiring the
offender to perform unpaid work of benefit to the community in
place of, or in addition to, other sentences; and
(c) in respect of an offender who is 7 years or above but under
16 years of age, send him to a reformatory school administered
by the Health and Welfare Department. The period of training
in the school is for not less than one year but not more than
three years. The emphasis of this order is to achieve rehabilitation
through education and training.
25. It should be noted that, in Hong Kong, a scheme of "spent
convictions" was introduced in 1986 by the Rehabilitation
of Offenders Ordinance, Chapter 297 of the Laws of Hong Kong.
The objective of the scheme is to rehabilitate those offenders
whose offences are not in the most serious category and who have
not been re-convicted for three years. The Ordinance prevents
unauthorized disclosure of a previous conviction that satisfies
the criteria specified in the legislation. In other words, an
offender whose conviction has become "spent" is, for
most purposes, to be treated as if he had not been convicted
of that offence.
Penal programmes are corrective
and rehabilitative in orientation
26. There are certainly cases where the best interests of the
community and of the offenders require that the offenders be
taken out of circulation for a period. In so far as young offenders
and drug addicts are concerned, the CSD provides a comprehensive
training centre programme for young offenders aged under 21,
a detention centre programme for offenders up to the age of 24,
and a drug addiction treatment programme for drug addicts. These
programmes are expressly provided for by penal legislation.
27. The Detention Centres Ordinance, Chapter 239 of the Laws of Hong Kong, provides for the detention of young offenders of or over 14 and under 25. Detention centres provide correctional training:
(a) to young offenders of or
over 21 years of age, for periods ranging from a minimum of a
three months to a maximum of twelve months; and
(b) to young offenders below 21 years of age, for periods ranging
from a minimum of one month to a maximum of six months.
28. The detention centre programme emphasizes strict discipline, strenuous training, hard work and a vigorous routine. The central feature of this programme is the "short, sharp, shock". After release, inmates may be subject to a statutory supervision period of one year. This programme is considered to be particularly effective in respect of first time young offenders. After discharge from the detention centre, 95 % of the inmates completed the supervision period without reconviction.
29. The Training Centres Ordinance, Chapter 280 of the Laws of Hong Kong, provides for the establishment of training centres for the training and reformation of offenders who have attained the age of 14 years and have not attained the age of 21 years.
30. Training centres provide correctional training for young offenders for periods ranging from a minimum of six months to a maximum of three years. These offenders attend half-day educational classes and receive half-day vocational training. They also receive character development training in the form of scouting or guiding, as well as Outward Bound training. On Sundays and public holidays, visits are made to youth centres, factories, sports centres and country parks. Activities to provide social services for the elderly and the mentally and physically handicapped are arranged for inmates nearing discharge to better prepare them for re-integration into society. Upon release, inmates may be subject to a statutory period of supervision of three years. In 1999, the success rate of the training centre programme (measured by the percentage of inmates completing the 3-year supervision without reconviction) was 64% for male inmates and 86% for female inmates.
31. The Drug Addiction Treatment Centres Ordinance, Chapter 244 of the Laws of Hong Kong, provides for the cure and rehabilitation of persons found guilty of criminal offences who are suffering from addiction to a dangerous drug. Drugs addicts may be detained in a drug addiction treatment centre for periods ranging from a minimum of two months to a maximum of twelve months, depending on their progress.
32. The drug addiction treatment programme aims to detoxify, restore physical health and, through the application of therapeutic and rehabilitative treatment, wean addicts away from their dependence on drugs. The in-centre treatment may be followed by twelve months of statutory supervision. In 1999, the success rate (measured by the percentage of inmates completing the twelve months supervision without re-conviction and remaining drug-free) was 67% for male inmates and 78% for female inmates.
Education and Vocational Training
33. Educational and vocational training classes conducted by
qualified teachers and instructors are organised for offenders
aged under 21 years. In educational classes, textbooks are used
to provide inmates at different levels with suitable and practical
learning material matching their maturity and development.
34. Adult offenders may attend voluntary evening classes conducted by part-time teachers. Self-study packages and distance learning courses are also available.
35. All offenders are encouraged to take part in both local and overseas public examinations organised by the Hong Kong Examination Authority and overseas authorities. Young inmates may sit for the Hong Kong Certificates of Education Examination as school candidates, and formal classes up to certificate level are provided to them. Adult inmates may sit for the examination as private candidates. Some offenders, mostly adults, have also participated in degree courses offered by the local and overseas academic institutes.
36. To facilitate a smooth re-integration of young inmates into the community, vocational training courses are provided to help them to cultivate work habits and discipline, engage in productive work, acquire job skills and gain public-accredited qualifications. Various courses related to industrial or commercial skills are provided to prepare inmates for job placement upon discharge. For those who wish to continue their vocational training after release, the CSD makes referrals for suitable inmates to further their training in other training institutions such as the Vocational Training Council and the Construction Industry Training Authority.
Psychological Services
37. Psychological services are provided to inmates to enhance
their psychological well being and to change their offending
behaviour. Special treatment programmes are also provided to
sex offenders, inmates with addictive problems, young offenders
as well as long-term prisoners by clinical psychologists and
trained officers.
Supervision programmes for prisoners
38. The Release under Supervision Scheme and Pre-release Employment
Scheme, the first parole schemes for prisoners in Hong Kong,
were introduced in 1988 by the Prisoners (Release under Supervision)
Ordinance, Chapter 325 of the Laws of Hong Kong. Under these
schemes, successful applicants are discharged or permitted to
go out to work and live in a designated hostel, under the supervision
of after-care officers, for the balance of their sentences. The
aim is to enable suitable, eligible and motivated prisoners to
serve their sentences in an open environment under close supervision.
Prisoners who breach supervision conditions may be recalled to
serve the remainder of their sentence. In 1999, the success rate
(measured by the percentage of prisoners completing the supervision
without re-conviction) for these two schemes was 100%.
39. The Post-Release Supervision of Prisoners Scheme came into operation in 1996, when the Post-Release Supervision of Prisoners Ordinance, Chapter 475 of the Laws of Hong Kong was enacted. This scheme provides after-care supervision for certain categories of adult prisoners upon release, to facilitate their rehabilitation and re-integration into society. This scheme is useful to assist adult prisoners who on release are vulnerable to recidivism and those who may pose a threat to the public. Prisoners breaching the supervisory conditions may be recalled to serve the balance of their unexpired prison term. In 1999, the success rate (measured by the percentage of prisoners completing the supervision without re-conviction) for this scheme was 93%.
40. The Conditional Release Scheme, which applies to prisoners subject to indeterminate sentences, was introduced in 1997 by the Long-term Prison Sentences Review Ordinance, Chapter 524 of the Laws of Hong Kong. This scheme provides that prisoners with indeterminate sentences may be conditionally released under supervision for a specific period to test their determination and ability to lead a law-abiding life. In 1999, the success rate (measured by the percentage of prisoners completing the supervision without re-conviction) for this scheme was 100%.
Way forward
41. Hong Kong has made efforts and will continue to strive to
facilitate the successful rehabilitation of offenders. The Rehabilitation
Centres Bill, which seeks to introduce a new and dedicated short-term
residential programme for young offenders, was gazetted in October
1999 and is pending legislative approval. This legislative proposal
is yet another positive step designed to further enhance the
rehabilitation of offenders.
42. The responsibility of the penal institution is not only to take sentenced persons into custody. It has the vital task of correcting and rehabilitating such persons. Penal policy must retain a progressive dimension. Prisons are no longer to be seen as convenient social dustbins into which can be dumped the most troublesome members of society. With the rising expectations of the community, the biggest challenge for the modern penal institution in the new millennium is to facilitate the successful rehabilitation of offenders in their custody and to help them to lead a decent and law-abiding life upon release into the community. This will require perseverance, patience and imagination. At times, the problems may appear immense. But the effort must be made.
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