Jonathan Chung Wa Ho and Justin Chan Wan on The Anatomy of the Six-Step Sentencing Approach for Drug Trafficking (HKJLS)

"The Anatomy of the Six-Step Sentencing Approach for Drug Trafficking: Consolidating Herry Lane Yusuph, Lee Ming Ho, and Raman Kapusamy"
Jonathan Chung Wa Ho and Justin Chan Wan (BSocSc (Government and Laws) and LLB)
Hong Kong Journal of Legal Studies (Volume 18, 2024), pp. 31 - 64

Abstract: The recent cases of HKSAR v Lee Ming Ho and HKSAR v Raman Kapusamy contribute crucial clarity to the sixstep sentencing approach formulated in HKSAR v Herry Jane Yusuph. This trio of trafficking cases chart a course for Hong Kong’s move away from a prescriptive arithmetical drug sentencing policy, and towards a more discretionary, structured and individualised assessment of culpability. By offering a consolidation of these three cases, we analyse the core rationale adopted by the Hong Kong Court of Appeal, and the potential extension of

such to subsequent cases when the six-step approach operates in tandem with pre-existing sentencing principles. We focus our analysis on the delineation between ‘role and culpability’ and ‘aggravating factors’, the availability of mitigating factors, and the overall proportionality assessment required by the principle of totality.

HKU Law Welcomes Prof. Florence Lee

Welcome to Prof. Florence Lee, who joins the Faculty of Law as an Assistant Professor. Florence completed her DPhil at the St Antony’s College, University of Oxford. Prior to her DPhil, Florence obtained her MSc in Criminology and Criminal Justice (with Distinction) at the Worcester College, University of Oxford and her BA from Fitzwilliam College, University of Cambridge, graduating with double first class honours.

Florence teaches and conducts research in criminal law and criminal justice issues. She is interested in theoretical criminal law, criminal justice, sentencing as well as questions around risk, security and justice. She has published in journals including the Criminal Law Review and Sentencing News, and she has contributed a chapter to Precursor Crimes of Terrorism: The Criminalisation of Terrorism Risk in Comparative Perspective (Edward Elgar Publishing). She is a certified mediator and was called to the English Bar as a member of the Honourable Society of Lincoln’s Inn in 2020.

"Using AI to Predict Trafficking Sentences" (Anne Cheung Profiled in HKU Bulletin)

"Using AI to Predict Trafficking Sentences"
Anne Cheung
HKU Bulletin
Published in November 2021

Computer Science and Law have joined forces to produce a predictor which uses artificial intelligence (AI) to calculate the likely sentencing for drug trafficking.

     Under the auspices of the Law and Technology Centre, the research team led by Professor Ben Kao of the Department of Computer Science and Professor Anne Cheung of the Faculty of Law have developed a Stage-1 model of HKU AI Lawyer, which can predict sentencing associated with eight different types of dangerous drugs. Users simply provide information, in the form of answering four straightforward questions, and the AI Lawyer will predict what sentencing will be, as well as breaking down individual factors that will lead to the sentence.

     “We wanted to find an answer to the challenging issue of how legal knowledge that is embedded in previous court judgments can be captured and modelled using machines,” said Professor Cheung. “Lawyers have to familiarise themselves with previous court cases or ‘precedents’ which serve as important guidelines to future cases. In Hong Kong alone, there are more than 80,000 historical judgments.

     “Although there are guidelines on determining prison term ‘starting points’, these starting-point penalties have to be adjusted based on various mitigating and aggravating factors specific to each case. Predictions are more difficult for more complicated cases, such as those involving multiple drug types.”

     It would be a Herculean task for a human lawyer to recall all relevant precedents when he or she is researching and preparing for a new case. The team therefore took on the task of studying how to train a machine to comprehend and memorise court judgments using AI techniques and to reason based on the logic discovered from judgments. …Click here to read the full text. 

HKU Law and Technology Centre launched HKU AI Lawyer: Sentencing Predictor for Drug Trafficking

Recent advances in artificial intelligence (AI) and machine learning bring disruptive changes to legal practice. AI can be used to draw insights from past judicial decisions to predict future outcomes. In the criminal justice system, one essential aspect is sentencing. Much attention has been placed on how AI informs decisions about sentencing and how to use AI to assist people to obtain and make use of sentencing information.

Professor Anne Cheung of the Faculty of Law and Professor Ben Kao of the Department of Computer Science at the University of Hong Kong and their research team have developed a Stage-1 model of HKU AI Lawyer - an AI-assisted sentencing predictor for the offence of trafficking in dangerous drugs in Hong Kong. The predictor is based on an innovative combination of legal domain knowledge and machine learning techniques. Users only need to provide relevant information through responding to four simple questions, and the predictor will generate an estimated term of imprisonment. Another useful feature of the predictor is that it will at the same time show the links to court decisions which are most relevant to the given facts. The sentencing predictor is a pragmatic tool for professionals including lawyers, social workers and teachers. It also serves to inform the public of likely legal consequences of committing drug trafficking offences.

A workshop was held on May 18 (Tuesday) to introduce the background of HKU AI Lawyer, with a demonstration of how to use the sentencing predictor, to lawyers, social workers and members of the community. Mr. Chan Man Ho, Deputy Director of the Hong Kong Federation of Youth Groups, also shared his experience.

Media representatives were cordially invited to attend the workshop, with details as follows:

Date: May 18, 2021 (Tuesday)

Time: 2:00 – 3:15pm

Venue: Academic Conference Room, 11/F, Cheng Yu Tung Tower, Centennial Campus, HKU (map)

Language: Cantonese

Speakers:

Professor Anne Cheung

Co-Director, Law and Technology Centre

Professor of Law, Faculty of Law, HKU

Professor Ben Kao

Co-Director, Law and Technology Centre

Professor, Department of Computer Science, Faculty of Engineering, HKU

Mr. Michael Cheung

Research Officer

Law and Technology Centre, Faculty of Law, HKU

Mr. Chan Man Ho

Deputy Director

The Hong Kong Federation of Youth Groups

** The workshop was simultaneously aired through Zoom:

Link: https://hku.zoom.us/j/96186396394

Meeting ID: 961 8639 6394

For media enquiries, please contact:

Ms. Grace Chan, Secretary, Law and Technology Centre, Faculty of Law, HKU (Tel: 3917-4727; Email: mcgrace@hku.hk)

Media Coverage

"Hong Kong drug offenders get clearer view of options as new computer program scans thousands of cases to determine likely sentences", SCMP, 19 May 2021.  For other media coverage, see the list on the Law and Technology Cente webpage.

Amanda Whitfort on Wildlife Crime and Animal Victims: Improving Access to Environmental Justice in Hong Kong (forthcoming journal article)

"Wildlife Crime and Animal Victims: Improving Access to Environmental Justice in Hong Kong"

Amanda Whitfort

Journal of International Wildlife Law & Policy, forthcoming 2020

Abstract: Wildlife crimes are often argued to be victimless, due to the anthropocentric view of crime which dominates policy and policing discourse. Falling outside the normative criminal justice lens, wildlife crimes are not frequently brought to court and lack of expertise in policing and prosecuting cases impairs their recognition as serious crimes. When wildlife offences are prosecuted, the tendency to try cases in the magistrates’ courts compounds problems with lack of judicial exposure to this specialised form of crime and limits development of judicial expertise in the field. The traditional punishments utilised for wildlife crimes have also tended to follow the trajectory for mainstream offences, focussing exclusively on the liability of the defendant (through considerations of deterrence, incapacitation and rehabilitation) or on the remedying of harms to the environment (via restoration and compensation). Lacking legal standing in the court process, harms caused to endangered animals (as individuals or species) have been marginalised from consideration in sentencing decisions. Recognised only as legal property, they may be forfeited or returned to their lawful owners, in accordance with the court’s findings. Focusing on recent developments in Scotland and Hong Kong, this paper argues that a more effective justice response to wildlife crime permits recognition of the interests of animals, as victims, in wildlife offences. While victim impact statements for pollution offences are received by the courts in many jurisdictions, with the notable exception of Scotland, they have not been formally recognised for animals in wildlife offences. In Scotland, prosecutors and the judiciary are now provided with expert evidence as to the range of social, economic and species harms caused by wildlife offending. Armed with knowledge of the role of animals as individual and species victims of crime, sentences may be passed which take appropriate regard of wild animal suffering, their monetary and conservation value, and the impact of their loss on biodiversity. In Hong Kong, the nature of wild animals as victims of crime has also begun to be recognised in the use of victim impact statements for wildlife offences. Victim impact statements for 33 of the most commonly smuggled animals traded into and through Hong Kong are now utilised by prosecutors in their presentation of wildlife cases at court. The use of these statements is allowing for better informed sentencing decisions in individual cases and improved environmental justice in the region.  This is output from GRF Grant No 17655316. Please contact the author (whitfort@hku.hk) to obtain the full text.

Wildlife Victim Impact Statement Assists Prosecution in Hong Kong Rhinoceros Horns Case (Sing Tao Daily)

"About 1.7 million yuan of rhinoceros horns: Mainland male pleaded guilty" (translated into English)

Sing Tao Daily

19 October 2018

A Chinese man working in South Africa who smuggled 3.11 kg of rhinoceros horns into Hong Kong from Mozambique in June this year was today sentenced in the District Court to 12 months imprisonment, reduced to 8 months on a guilty plea.

     The defendant, Wei Bin, claimed to work in Mozambique. He flew to Hong Kong on June 17 this year intending to transfer to the mainland to visit relatives. During his period of entry, he was found by the Hong Kong Customs and Excise Department to be carrying rhinoceros horn (Rhinaceae species). As a highly endangered animal and an Appendix 1 listed species, possession of rhinoceros horn is prohibited under CITES (The Convention on Trade in Endangered Species). The defendant told the court that his boss knew that he would return home to visit relatives and promised to pay his ticket cost on the condition he carry rhinoceros horn to Fujian, China, where someone would be waiting to receive it. The defendant also stated that he knew that the goods were rhino horns belonging to the category of Appendix I CITES. The defendant was arrested by the Customs and Excise Department after he was found to have a rhinoceros horn in his baggage and could not produce a certificate of exemption for possession.The prosecutor told the court the estimated market value of the horns was between 830,000 to 1.7 million Hong Kong dollars. ​

     Since August 1, 2018, under the Protection of Endangered Species of Animals and Plants Ordinance (Cap 586), anyone who possesses a specimen of Appendix I species is liable on conviction to a fine of 10 million and 10 years' imprisonment. Committed to raising public awareness of wildlife crimes, Amanda Whitfort, a professor at the University of Hong Kong Law School who participated in the amendments to the Ordinance, said that in the past, if the case did not involve a commercial transaction, the court could only sentence the defendant to a maximum fine of HK$100,000 and imprisonment for 1 year. Professor Whitfort lamented past cases in which sentencers had failed to pay due regard to the impact of wildlife crime on the increasing extinction of species globally. Together with staff at the Kadoorie Farm and Botanic Garden, Professor Whitfort prepared a victim impact statement for rhinoceros which was used by prosecutors in Wei Bin's case to advise the judge on the impact of the crime. The sentence delivered today is the highest ever passed in Hong Kong for the smuggling of rhino horn. 

     Whitfort's research shows that the rising value of Hong Kong seizures in trafficked animals is now comparable with seizures in dangerous drugs. Given their lucrative black market value, and the finality of extinction, she has argued wildlife trafficking cases should be taken by the courts at least as seriously as drug trafficking offences.

Peter Chau on Punishment and Bad Upbringing (Criminal Justice Ethics)

"Punishment and Bad Upbringing"
Peter Chau
Criminal Justice Ethics
July 2018, Vol 37, Issue 2, pp 103-121

Abstract: This article examines whether bad upbringing (or what is sometimes called a “rotten social background”) affects just or deserved punishment. There are two possible rationales for this claim. First, it may be argued that an offender’s blameworthiness for his choice to offend is reduced if he had a bad upbringing; second, it may be argued that fairness requires us to impose a less severe punitive burden on an offender with a bad upbringing, even if he is no less blameworthy for his crime. The article rejects both of these rationales.

Richard Cullen on "Criminal justice system works, keep it that way" (China Daily)

"Criminal justice system works, keep it that way"
Richard Cullen

China Daily
14 June 2018

Since the sentences were announced there have been strong protests about the severity of the penalties imposed, especially on Leung who was the former spokesman for Hong Kong Indigenous - a localist group. Incidentally, none of those protesting has paused to note the courage of the out-numbered policemen who brought the riot under control using the minimum force required, at serious cost in terms of injuries for a number of them.

      The array of people thus protesting included the last governor of British Hong Kong. Chris Patten is quoted as saying: "It is disappointing to see that the legislation is now being used politically to place extreme sentences on 'pan-democrats' and other activists". The relevant legislation is the Public Order Ordinance, the most significant elements of which were passed by the British Hong Kong government to give additional powers to police during the riots in Hong Kong in the mid-1960s. Shortly before the 1997 handover, the powers the British enjoyed under the ordinance until 1995 were watered down. The Provisional Legislative Council reversed these 11th-hour amendments in 1997. ...

     Patten's accusation that the Hong Kong Special Administrative Region judiciary is now in the business of applying the law with plain political intentions is not new. This is a reiterated claim. Hong Kong's former director of public prosecutions Grenville Cross has responded to similar past claims and I cannot improve on his observations: "As he (Patten) should know, Hong Kong's judiciary is fiercely independent, is comprised of men and women of integrity and is well regarded throughout Asia and beyond. Once he has cooled down, Patten may wish to withdraw his slur, and to give the judiciary his unequivocal support, given its valiant work in upholding the rule of law in Hong Kong." I can only add that it is disappointing that Lord Patten (as he now is) has lately demonstrated a comprehensive failure to heed this robust, sensible advice. ...

     We are genuinely fortunate that Hong Kong's criminal justice system is not devitalized like that in Britain (which Patten would have us emulate, it would seem). Our system has both integrity and backbone. The judges in that system understand their key role in keeping Hong Kong one of the safest large cities in the world - without fear or favor.  Click here to read the full text. 

Peter Chau on Hoskin's New Benefit-Fairness Theory of Punishment (Crim L & Philosophy)

"Hoskins’s New Benefit-Fairness Theory of Punishment"
Peter Chau
Criminal Law and Philosophy

published online, 17 Mar 12018, pp. 1-13

Abstract: The benefit-fairness theory of punishment (sometimes referred to simply as the “fairness” theory of punishment), which is one of the most prominent retributive justifications of punishment, appeals to some benefits received by an offender in explaining why it is fair to impose punitive burdens on him. However, many see the two traditional versions of the theory, found in the works by writers such as Herbert Morris, Jeffrie Murphy, and George Sher, as being susceptible to fatal objections. In a recent paper, “Fairness, Political Obligation, and Punishment,” Zachary Hoskins offers a new version of the benefit-fairness theory of punishment. I will highlight his original contribution by showing how his version of the benefit-fairness theory of punishment is different from the traditional versions in such a way that the main objections applying to the traditional versions do not apply to his account. Nonetheless, despite its many virtues, I will argue that Hoskins’s theory fails because it would entail disproportionate punishment.

HKU Law Faculty Members Comment on the Recent Jailing of Hong Kong Protesters

"Judiciary in the dock: jailing of student activists opens door to debate"

Julia Hollingsworth and Chris Lau
South China Morning Post
25 August 2017

On the night of September 26, 2014, amid the glare of television cameras and floodlights, student leader Joshua Wong Chi-fung leapt onto a fence around ­government headquarters in ­Admiralty.

     As he curled his spindly legs around the metal bars, the sight of the bespectacled teenager with his floppy mop of hair valiantly trying to scale the three-metre-high barrier, along with fellow ­student leader Alex Chow Yong-kang, galvanised others into ­action...

     Last week, student activists Wong, then 17, Law, then 21, and Chow, then 24, were slapped with jail sentences of six, seven and eight months respectively by an appeal court, after being spared prison by a lower court last year, for their acts that fateful evening.

     The higher sentences sparked a torrent of criticism in the city and abroad that Hong Kong’s ­independent judiciary was now succumbing to a government-led bid to hand out harsher punishments to its young critics...

     The courts’ only “crime” was that it was caught up in a politically charged event, University of Hong Kong legal scholar Simon Young Ngai-man said. “This is natural. You see it in other societies,” he said...

     But University of Hong Kong law scholar Eric Cheung Tat-ming questioned whether the Court of Appeal had gone beyond its scope.

     Under common law, Cheung said, the norm was not for the appellate court to meddle in the factual findings in appeal hearings and “re-cast” the facts. Cheung quoted former Court of Final Appeal judge Henry Litton’s ruling in a case in which he chastised an appeal court judge for “shedding his appellate gown” to take on a fact-finding role...

     His colleague, associate professor Peter Chau, who specialises in criminal law, also argued the sentences were excessive, as the appeal court had taken reference from past English cases when petrol bombs or rocks were hurled, sometimes targeting law enforcement officers...

"Is Hong Kong's Rule of Law Really Under Threat?"

Cliff Buddle

South China Morning Post

27 August 2017

The jailing of three prominent student leaders involved in Hong Kong’s Occupy protests has sparked a crisis of confidence in the city’s legal system and rule of law...

     University of Hong Kong law professor Simon Young said there should be more transparency in situations where the secretary for justice overrules senior prosecutors. In Canada, he said, there is a legal requirement that public notice be given when the Attorney General takes over control of a prosecution from the DPP. “It tells everyone I am intervening here, I am taking over. That will naturally have possible political implications and can attract the scrutiny of parliament. At least there is transparency. We don’t have that here,” Young added...

"Hong Kong justice chief defends jailing of democracy activists; slams claims of political persecution"

Catherine Lai

Hong Kong Free Press

24 August 2017

Hong Kong’s justice secretary has defending the jailing of three democracy activists, slamming claims that it amounted to political persecution...

Law professor Johannes Chan said during a Commercial Radio programme in response to Yuen’s comments that he accepted his explanation for the timing of the review, but Yuen should explain in detail whether the DOJ’s decision to review the sentences were mixed with considerations outside of legal ones – in order to dispel citizen’s concerns.

     In a column on Wednesday, Chan said that the first magistrate’s decision to hand down a lenient sentence, as well as the Court of Appeal’s decision to give a deterrent sentence, were both within the judiciary’s scope of discretion.

    “Even if we don’t agree with the Court of Appeal’s final judgement, it should not influence our belief in the judiciary’s independence,” he wrote...

See also KC Ng, "Law scholar urges Hong Kong justice minister to come clean on process that led to jail time for pro-democracy activists", SCMP, 24 Aug 2017; Michael Davis, "With Hong Kong's young faces of democracy in jail, is civil society being put in chains?", SCMP, 23 Aug 2017;  "Legal scholars hit out at Hong Kong's jailing of three democracy activists", Radio Free Asia, 18 Aug 2017; J Siu & T Cheung, "Lawyers confident three jailed Hong Kong student protesters will receive leave to appeal against prison terms", SCMP, 19 Aug 2017.

Hualing Fu Interviewed on Yu Huan's Sentence Reduction from Life to 5 Years (NY Times)

"Court in China Reduces Sentence for Man Who Killed Debt Collector"

Javier Hernandez and Iris Zhao
The New York Times
23 June 2017

BEIJING — A Chinese court commuted on Friday the sentence of a man who had killed a creditor who had harassed his mother, in a closely watched case that has provoked a national debate about family honor and filial piety.

     The Shandong Higher People’s Court in eastern China sentenced the 22-year-old Yu Huan to five years in prison, overturning a lower court’s sentence of life in prison that had been widely condemned.

     Mr. Yu was working alongside his mother, Su Yinxia, at the family’s store last year when 11 debt collectors showed up seeking payment from Ms. Su on a high-interest loan.

     The men grew increasingly violent toward Ms. Su, cornering her and her son in a back office. When one of the collectors, Du Zhihao, yelled insults and exposed his genitals, Mr. Yu responded by stabbing Mr. Du and several other men. Mr. Du later died in a hospital...

     Fu Hualing, a law professor at the University of Hong Kong, said the case had posed a predicament. On the one hand, officials may have been eager to show some sympathy for the harsh circumstances the defendant had faced. On the other, Professor Fu said, the government most likely wanted to signal that it would not tolerate violent acts... Click here to read full article.

Sentencing in Hong Kong (new book chapter)

"Sentencing"
Simon NM Young
in Eric WH Chui & T Wing Lo (eds), Understanding Criminal Justice in Hong Kong, 2nd Edition
Sept 2016, Routledge, 400 pp

Abstract: Constitutional norms, statutory rules and common law principles govern the art and science of sentencing in Hong Kong. Death penalty and corporal punishments are sentencing measures of the past. As reflected in a 2014 law reform report on suspended sentences, the emphasis now is on discretionary sentencing, although murder still carries a mandatory life imprisonment. Hong Kong courts have a full range of sentencing options to ensure that the punishment fits the crime and offender. Sentencing decisions are informed by traditional purposes of punishment including public protection, deterrence, retribution, rehabilitation and reparation for victims. The purpose of denunciation has been cited by judges more frequently in recent years. Restorative justice, however, is not commonly referred to. Hong Kong’s Court of Appeal provides guideline sentences for specific offences; such guidelines assist courts in setting the starting point sentence in a particular case. Aggravating and mitigating factors serve respectively to move the sentence marker up and down. While proportionality is an applied constitutional principle of sentencing, courts still enhance sentences in cases of prevalent organised crime and routinely give sentencing discounts on pleas of guilty or for assistance given to the authorities.  Click here to download the chapter.