28 October, 2016
On 2 September 2016, the Court of Appeal laid down new guidelines on sentencing discounts on a guilty plea in two appeal cases (HKSAR v Ngo Van Nam, CACC 418/2014 and HKSAR v Abdou Maikido Abdoulkarim, CACC 327/2015).
Prior to these judgments, the practice was that a defendant would be given a one-third discount from the starting point for sentence, upon a guilty plea, if that plea was tendered up to and until the first day of trial (subject to the Court’s overriding discretion). The new practice means that the earlier the plea is given, the greater the discount that will be given, as follows:
|
Court level |
Time of entering guilty plea |
Discount (from starting point) |
|
CFI |
Committal stage (when Magistracy informs D of committal to CFI) |
1/3 |
|
After committal to CFI and up to and until trial dates fixed. |
25% |
|
|
After trial dates fixed, but before first day of trial |
20-25% |
|
|
First day of trial |
20% |
|
|
During trial (after first day of trial) (e.g. after voir dire holding, or after D has challenged some other aspects of the prosecution case) |
Less than 20% |
|
|
District Court |
Plea Day (first day of hearing of cases transferred from the Magistracy to District Court) |
1/3 |
|
After trial dates fixed, but before first day of trial |
20-25% |
|
|
First day of trial |
20% |
|
|
During trial (after plea is taken) |
Less than 20% |
|
|
Magistracy |
When D is asked to tender plea |
1/3 |
|
After trial dates fixed, but before first day of trial, D indicates (and then pleads) guilty |
20-25% |
|
|
First day of trial |
20% |
|
|
During trial |
Less than 20% |
Under the revised practise the following principles remain: (i) the court retains an overriding discretion in sentencing; and (ii) the court will not have regard to the strength of the prosecution’s case in determining the discount to be given.
This new practice will only apply to a defendant who in future reaches the stages in criminal proceedings for which the revised discounts are identified. For those defendants whose trial dates have already been fixed (as at 2 September 2016), the previous practise will apply.
For further information, please contact:
Karen Menon, Deacons
