Legal update: The new sentencing guidelines on a discount in sentence for a guilty plea18Oct2016
In the recent appeal case of HKSAR v Ngo Van Nam CACC 418/2014, the Court of Appeal set down new guidelines for determining the amount of discount in sentence to be given to a defendant for a guilty plea. Prior to this decision a defendant received a one third discount on sentence for a guilty plea entered at any time up to the start of the trial. The amount of discount will now be restricted and will depend upon the stage the proceedings have reached at the time the guilty plea is tendered.
The New Guidelines
The one third discount entitlement is now limited to those guilty pleas entered on the first occasion the defendant is required to tender a plea. If a not guilty plea is entered and a trial date is fixed then the full discount is lost. If the defendant later pleads guilty before trial the discount will be lower and will range downwards from 25% to 20%. For pleas of guilty made on the first day of trial, the discount is 20% and if a guilty plea is tendered after the trial has started, the discount will be less than 20%.
Tendering the plea
All criminal cases, no matter how serious, will begin in the Magistrates’ Court. The serious cases are later transferred to the District Court or committed to the High Court to be heard.
In those cases that remain in the Magistrates’ Court it is the responsibility of the prosecution to inform the Court when they are ready for plea to be taken. The defendant will then be asked to tender his plea.
In a District Court case the Defendant is usually asked to tender a plea on the first occasion the case is before the District Court.
With High Court cases, the procedure is slightly different. The defendant is asked to tender a plea to the Magistrate at the hearing when the Magistrate formally “commits” the case up to the High Court.
The test our common law criminal system applies to the question of ‘guilt’ is whether the prosecution has proved its case beyond a reasonable doubt. There are many instances where a defendant is not sure about his guilt. A defendant in the Magistrates’ Court is provided with legal advice through the Duty Lawyer Service if they cannot afford a private lawyer. A defendant is also entitled to full disclosure of the evidence the prosecution will rely on to prove its case. It should follow that a defendant and his lawyer should have full disclosure of evidence before the defendant is asked to tender plea.
Full disclosure is rarely available at the first hearing of a case before the Magistrate. However, pleas were frequently requested and entered simply on the defendants’ instructions. Unless the plea at the time was unequivocal the defendant was usually told to plead not guilty. This was fine when the defendant could later on, upon receipt of full disclosure and legal advice, change the plea without penalty.
The entering of a plea without sight of the evidence is not likely in the District Court nor in the High Court as the defendant will have received full disclosure before the case is transferred or committed. Indeed it is a condition that the Defendant must have received disclosure at least 7 days before.
The Magistracy can now expect many applications from the defence to adjourn cases prior to plea for provision of full disclosure of the prosecution case. It is possible for defence solicitors to apply for disclosure to the police as soon as a suspect is charged. Disclosure may then be available at the first hearing. However most defendants use the Duty Lawyer Service at court and the Service only receives papers on the morning of the first appearance. The DLS will not have disclosure of evidence upon which to advise the defendant on plea.
Defendants will now be demanding advice from defence counsel on plea at an early stage. Counsel will be unable to discharge their professional duty in that regard without full disclosure. This new guideline may also place an expectation on the prosecution to provide full disclosure before declaring they are ready for plea to be taken.
The new guidelines will result in more applications to adjourn cases for disclosure of evidence. It is to be hoped that those applications will be fairly considered to ensure a defendant is not forced into entering a plea.
It is also hoped that the Court will not draw a distinction between defendants who plead guilty after receiving legal advice on the prosecution’s evidence and those that insist to plead guilty without disclosure of the prosecution’s case.
It should be noted that the police will, or should have, their evidence together before they charge, so the provision of that copy evidence to the defence will not add to the preparation and administration of the case.
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.