Principle

While it has been an established convention that a one-third discount from the starting point for sentence would be given to a guilty plea made before trial, the Court of Appeal re-examined such practice in the cases of HKSAR v Ngo Van Nam [2016] HKCA 396 and HKSAR v Abdou Maikido Abdoulkarim [2016] HKCA 397.

Rationale

The one-third discount was justified by policy reasons.  A full trial would not be necessary if a defendant pleads guilty at an early stage of the proceedings, and hence saving the time and resources of both the prosecution and the Court. It would also avoid any embarrassment which may be caused to the victims of the crime if they are required to give evidence during trial. It is therefore in the public’s interest to give defendants a sentence discount as an incentive for a timely guilty plea.

The loophole of the previous approach and the confusion of a timely guilty plea were highlighted in the cases of HKSAR v Ma Ming [2013] I HKLRD 813 and HKSAR v Lo Kam Fai [2016] HKCA 94 respectively. Since the sentence discount of one-third from the starting point would normally be given to a defendant as long as a guilty plea is made before trial, some defendants (especially those remanded in custody awaiting trial) would deliberately delay pleading guilty so as to prolong their time being remanded as prisoners awaiting trial.  It is notable that those remanded in prisons awaiting trial are subject to less stringent restrictions than those remanded after conviction. Also, the time spent in prison awaiting trial is deductible from the sentence to be imposed after they plead guilty subsequently. As such, defendants are allowed to make use of the loophole for personal benefit at the expense of public resources.

Reduction in Sentence

In Ngo Van Nam, the Court addressed this issue and gave a clear guideline as to what is meant by a “timely” guilty plea.  Instead of giving a full one-third discount to all defendants who pleaded guilty before trial, the Court set out different levels of discount for a guilty plea entered in different stages of criminal proceedings: the later a guilty plea is entered, the smaller discount would apply.

 Level of Reduction

The Court considers the notion of timeliness with reference to a specific stage of the proceedings. Generally, a discount of 20% from the starting point will be taken for a guilty plea on the first day of trial. And those who plead guilty during the trial would be given less than 20% discount.

• The Court of First Instance

In order to secure a full one-third discount, the guilty plea should be made at the committal in the Magistracy, which would then be committed for sentence to the Court of First Instance. A 25% discount from the starting point for sentence would be appropriate if one pleads guilty after committed to the Court of First Instance for trial, but up to and until trial dates are fixed. An indication of the plea of guilty during the period between the fixing of trial dates up till before the first day of trial would receive a discount of 25% to 20%.

•  The District Court

A full one-third discount is afforded to those who indicate at Plea Day that they would plead guilty. If a guilty plea is only indicated to the Court or prosecution before the first day of trial, the defendant is afforded a discount of 25% to 20%.

•  The Magistracy

 If a guilty plea is made when the defendant is asked to tender a plea to the charge, he would be able to secure a one-third discount from the starting point for sentence.  If the defendant indicates that a guilty plea will be tendered before the date fixed for trial, the discount to be afforded to a defendant lies between 25% to 20%.

Conclusion

To strike a balance between preserving public resources and honouring a defendant’s remorse, the one-third discount rule has been revised to be given to timely pleas only. Nonetheless, certain principles remain unchanged. They include the overriding discretion of the judge, and that the strength of the prosecution case is not a factor to be considered in determining the discount to be afforded to a defendant. Although the revised arrangement may not afford lawyers as much time to analyse the strength of the evidence, it encourages defendants to come forward once they know they are guilty of the offence.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.