Kemal Bokhary on Crime and Punishment – The Birth of Justice? (HKLJ)

"Crime and Punishment – The Birth of Justice?"
Kemal Bokhary
Hong Kong Law Journal, Vol. 54, Part 2 of 2024, pp.307 - 313

Abstract: Even more than they treasure justice, people abhor injustice. There is substance in the proposition that crime and punishment is the birthplace of judicial justice, for historically leaders paid more attention to suppressing offences than to resolving private disputes. The quality of criminal justice was a measure of the leader. Self-help between subjects was not frowned upon. But the taking of revenge by the victims of crime was always prohibited, for the taking of such revenge puts the law out of office. And it would lead to anarchy. The administration of criminal justice stood sorely in need of improvement. Much improvement has been made. But much more remains to be made. Two of the improvements made were surprisingly long in coming. One of these is an accused person’s right to counsel. If defence counsel’s incompetence deprives the accused of a fair trial, that is a ground for quashing a conviction. Prosecutors’ duty is to prosecute but they must do so fairly. Their failure to do so can lead to the quashing of a conviction. The other improvement that was surprisingly late in coming is the conferring of the right of criminal appeal. Exonerating the innocent and calling the guilty to account is the objective of the criminal justice system. Convicting the innocent and letting the guilty go free are both abominations. But the former is the worse. The presumption of innocence and the prosecution’s burden of proving guilt beyond reasonable doubt are directed to avoiding it. Sentencing involves bearing in mind various different interests and sentiments. The reformation of offenders is the main, but no sole, objective of punishment. Comparing Dudley and Stephen’ case with the Conjoined Twins’s case as thought-provoking. Stimulating thought is one of the best ways way of teaching.