Delay in Prosecution as a Mitigating Factor in Hong Kong: Towards Doctrinal Coherence

Unreasonable delay in prosecution is widely recognised as a mitigating factor in sentencing. Nevertheless, to date there is only scattered judicial discussion and academic literature on its doctrinal bases in Hong Kong. This article undertakes the task of exploring whether sentencing courts in Hong...

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Bibliographic Details
Published in:Journal of criminal law (Hertford) 2023-12, Vol.87 (5-6), p.305-328
Main Authors: To, Chi Pong, Wan, Trevor TW
Format: Article
Language:English
Subjects:
Basis
Coherence
Constitutional rights
Courts
Criminal law
Criminal sentences
Prosecutions
Public interest
Rehabilitation
Scrutiny
Ventures
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Summary:Unreasonable delay in prosecution is widely recognised as a mitigating factor in sentencing. Nevertheless, to date there is only scattered judicial discussion and academic literature on its doctrinal bases in Hong Kong. This article undertakes the task of exploring whether sentencing courts in Hong Kong have crystallised a coherent doctrinal basis or rationale underlying this mitigating factor. A thorough review of the case law reveals four different doctrinal bases, namely fairness, rehabilitation, public interest, and delay per se. These bases, however, rest on shaky doctrinal foundations and cannot withstand analytical scrutiny. Recognising this undesirable state of the law, this article ventures into proposing an alternative doctrinal basis for this mitigating factor, rooted in the constitutional right to be tried without undue delay enshrined in art. 87(2) of the Hong Kong Basic Law and art. 11(2)(c) of the Hong Kong Bill of Rights. This new basis, we contend, will offer the much-needed coherence to the law.
ISSN:0022-0183
1740-5580
DOI:10.1177/00220183221110380