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Why Do Criminal Trials ‘Crack’? An Empirical Investigation of Late Guilty Pleas in Hong Kong

  • Kevin Kwok-yin CHENG (a1), Wing Hong CHUI (a2), Simon N M YOUNG (a3) and Rebecca ONG (a4)
Abstract

‘Cracked trials’, where defendants enter a late guilty plea after a trial date has been set, are considered a societal problem because public resources set aside for trials are wasted. Various government reports attribute the main cause to tactical defendants playing the system, and reforms have been initiated to encourage early guilty pleas and strongly discourage late ones. The aim of the present study is to investigate the reasons for cracked trials in the Hong Kong context, insofar as the reasons for late guilty pleas can be investigated without the influence of reforms seen in other jurisdictions used to discourage late pleas. A mixed methods approach of courtroom observations and interviews with defendants was adopted. We find that defendants who were represented by publicly-funded lawyers or who were in prolonged pre-trial detention were more disposed to changing their pleas. Subsequent interviews illustrate why these factors are salient. The findings support the notion that it is the pressures of the criminal justice process that lead defendants to ‘crack’ and highlight the costs to defendants for decisions on how to plead that are influenced by considerations other than actual culpability.

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Associate Professor, Faculty of Law, The Chinese University of Hong Kong.

Professor, Department of Applied Social Sciences, City University of Hong Kong.

Professor, Faculty of Law, University of Hong Kong.

§

Associate Professor, School of Law, City University of Hong Kong. Acknowledgment: This study was generously supported by a General Research Fund (GRF) from the Research Grants Council, University Grants Committee, Hong Kong SAR (Project No. 14401214). We would like to thank the following NGOs for their help in recruiting the interviewees: Kowloon City District Youth Outreaching Social Work Team, Kwai Tsing & Tsuen Wan Youth Outreaching Social Work Team, Kwun Tong District Youth Outreaching Social Work Team, Sham Shui Po District Youth Outreaching Social Work Team, Society for Community Organization, The Society of Rehabilitation and Crime Prevention, The Society for the Aid and Rehabilitation of Drug Abusers (Adult Female Rehabilitation Centre), and Youth Outreach- Transitional Housing for Girls. We would also like to thank Margo Mok, Henry Leung and Becky Leung for their excellent research assistance. Previous versions of this paper were presented at the East Asian Law and Society 4th Annual Conference, HKU-NUS-SMU Conference, Eleventh International Conference on Interdisciplinary Social Sciences, and the 6th Annual International Conference on Law, Regulations and Public Policy.

Footnotes
References
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1. Ashworth, Andrew and Redmayne, Mike, The Criminal Process (4th edn, OUP 2010) 293 .

2. Great Britain Home Office, Justice for All – A White Paper on the Criminal Justice System (White Paper, Cm 5563, 2002) 51.

3. Auld, Robin, Review of the Criminal Courts of England and Wales: Report (Her Majesty’s Stationery Office September 2001) 408 ; Great Britain Home Office, ‘Justice for All – A White Paper on the Criminal Justice System’ (n 2) 32.

4. New Zealand Ministry of Justice, ‘Sentence Indication’ (NZ Ministry of Justice, 2012) <www.justice.govt.nz/courts/going-to-court/without-a-lawyer/representing-yourself-criminal-high-court/sentence-indication/> accessed 12 June 2017; Sentencing Advisory Council, ‘Sentence Indication: A Report on the Pilot Scheme’ (Sentencing Advisory Council February 2010) <www.sentencingcouncil.vic.gov.au/sites/default/files/publication-documents/Sentence%20Indication%20A%20Report%20on%20the%20Pilot%20Scheme.pdf> accessed 12 June 2017.

5. McConville, Mike and Marsh, Luke, Criminal Judges: Legitimacy, Courts and State-Induced Guilty Pleas in Britain (Edward Elgar Publishing 2014) 100 .

6. Dylan Walsh, ‘Why U.S. Criminal Courts are so Dependent on Plea Bargaining’ (The Atlantic, 2 May 2017) <www.theatlantic.com/politics/archive/2017/05/plea-bargaining-courts-prosecutors/524112/> accessed 12 December 2017.

7. See generally Heumann, Milton, ‘A Note on Plea Bargaining and Case Pressure’ (1975) 9(3) Law & Society Review 515 ; Lynch, David, ‘The Impropriety of Plea Agreements: A Tale of Two Counties’ (1994) 19(1) Law & Social Inquiry 115 ; Nardulli, Peter F, ‘The Caseload Controversy and the Study of Criminal Courts’ (1979) 70(1) Journal of Criminal Law and Criminology 89 .

8. See generally Baldwin, John and McConville, Mike, Negotiated Justice: Pressures to Plead Guilty (Martin Robertson 1977); Feeley, Malcom, The Process is the Punishment: Handling Cases in a Lower Criminal Court (Russell Sage Foundation 1979); McConville and Marsh, Criminal Judges (n 5); Andrew Sanders et al, Criminal Justice (4th edn, OUP 2010).

9. Lo, Stefan H C and Chui, Wing Hong, The Hong Kong Legal System (McGraw-Hill Asia 2012) 912 ; Chui, Wing Hong and Khiatani, Paul Vinod, ‘The Changing Landscape of the Criminal Justice System’ in Wing Hong Chui and T W Lo (eds), Understanding Criminal Justice in Hong Kong (2nd edn, Routledge 2017) 1 .

10. HKSAR v Ngo Van Nam [2016] HKCA 396, [2016] 5 HKLRD 1; HKSAR v Abdou Maikido Abdoulkarim [2016] HKCA 397, [2016] 5 HKLRD 1.

11. UK Ministry of Justice, ‘Criminal Court Statistics’ (UK Ministry of Justice, 2015) <www.gov.uk/government/collections/criminal-court-statistics> accessed 12 June 2017.

12. Walter Garrison Runciman, Report of the Royal Commission on Criminal Justice (Cm 2263, 1993) para 48; UK Ministry of Justice, ‘Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders’ (UK Ministry of Justice 2010), para 215 <www.justice.gov.uk/consultations/docs/breaking-the-cycle.pdf> accessed 12 June 2017.

13. Runciman (n 12) 112.

14. Zatz, Majorie S and Lizotte, Alan J, ‘The Timing of Court Processing: Towards Linking Theory and Method’ (1985) 23 Criminology 313 .

15. Great Britain Home Office, ‘Justice for All – A White Paper on the Criminal Justice System’ (n 2) 14.

16. ibid.

17. R v Turner [1970] 2 WLR 1093 (Court of Appeal of England and Wales).

18. ibid [327].

19. R v Goodyear [2005] EWCA Crim 888, [2005] 1 WLR 2532.

20. Runciman (n 12) para 48.

21. Auld, ‘Review of the Criminal Courts of England and Wales’ (n 3) para 97.

22. Goodyear (n 19) [49–50].

23. ibid [54].

24. ibid [58].

25. ibid [61].

26. Ashworth, Andrew, Sentencing and Criminal Justice (6th edn, CUP 2015) 181182 ; Willis, John, ‘New Wines in Old Bottles: The Sentencing Discount for Pleading Guilty’ (1995) 13(2) Law in Context: A Socio-Legal Journal 39 .

27. Criminal Justice Act 2003, s 144(1)(a).

28. Sentencing Guidelines Council, ‘Reduction in Sentence for a Guilty Plea- Definitive Guideline’ (Sentencing Guidelines Council 2017) <www.sentencingcouncil.org.uk/wp-content/uploads/Reduction-in-Sentence-for-Guilty-plea-Definitive-Guide_FINAL_WEB.pdf> accessed 15 June 2017.

29. UK Ministry of Justice, ‘Breaking the Cycle’ (n 12) para 216.

30. William Dawes et al, ‘Attitudes to Guilty Plea Sentence Reductions’ (Sentencing Council May 2011), 27 <www.sentencingcouncil.org.uk/wpcontent/uploads/Attitudes_to_Guilty_Plea_Sentence_Reductions_web1.pdf> accessed 12 June 2017.

31. Sally Lipscombe and Jacqueline Beard, ‘Reduction in Sentence for a Guilty Plea’ (House of Commons Library SN/HA/5974, February 2013), 6 <http://researchbriefings.files.parliament.uk/documents/SN05974/SN05974.pdf> accessed 12 June 2017.

32. See generally Albonetti, Celesta, ‘Sentencing under the Federal Sentencing Guidelines: Effects of Defendant Characteristics, Guilty Pleas, and Departures on Sentence Outcomes for Drug Offenses, 1991-1992’ (1997) 31(4) Law & Society Review 789 ; Albonetti, Celesta, ‘Direct and Indirect Effects of Case Complexity, Guilty Pleas, and Offender Characteristics on Sentencing for Offenders Convicted of a White-Collar Offense Prior to Sentencing Guidelines’ (1998) 14(4) Journal of Quantitative Criminology 353 ; McCoy, Candace, ‘Plea Bargaining as Coercion: The Trial Penalty and Plea Bargaining Reform’ (2005) 50 Criminal Law Quarterly 67 ; Ulmer, Jeffrey T and Bradley, Mindy S, ‘Variation in Trial Penalties Among Serious Violent Offenses’ (2006) 44(3) Criminology 631 ; Ulmer, Jeffrey T et al, ‘Trial Penalties in Federal Sentencing: Extra-Guidelines Factors and District Variation’ (2010) 27(4) Justice Quarterly 560 .

33. Albonetti, ‘Sentencing under the Federal Sentencing Guidelines’ (n 32).

34. Albonetti, ‘Direct and Indirect Effects’ (n 32).

35. Ulmer and Bradley, ‘Variation in Trial Penalties Among Serious Violent Offenses’ (n 32).

36. Ulmer et al, ‘Trial Penalties in Federal Sentencing’ (n 32).

37. Cheng, Kevin Kwok-Yin, ‘The Practice and Justifications of Plea Bargaining by Hong Kong Criminal Defence Lawyers’ (2014) 1 Asian Journal of Law and Society 395 .

38. Ulmer et al, ‘Trial Penalties in Federal Sentencing’ (n 32).

39. Ashworth, Sentencing and Criminal Justice (n 26) 137.

40. Baldwin and McConville, Negotiated Justice (n 8); McCabe, Sarah and Purves, Robert, By-Passing the Jury: A Study of Changes of Plea and Directed Acquittals in Higher Courts (Blackwell 1972); Bottoms, Anthony and McClean, John David, Defendants in the Criminal Process (Routledge 1976); McConville, Mike et al, Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain (Clarendon Press 1994); Newman, Daniel, Legal Aid Lawyers and the Quest for Justice (Hart Publishing 2013); Zander, Michael and Henderson, Paul, The Royal Commission on Criminal Justice: Crown Court Study (Research Study No 19, HMSO 1993).

41. Carol Hedderman and David Moxon, Magistrates’ Court or Crown Court? Mode of Trial Decisions and Sentencing (Home Office Research Series No 125, HMSO 1992).

42. Baldwin and McConville, Negotiated Justice (n 8) 4.

43. ibid 28.

44. ibid 3956.

45. McConville et al, Standing Accused (n 40).

46. Similar findings were made by Mulcahy, Aogán, ‘The Justifications of “Justice”: Legal Practitioners’ Accounts of Negotiated Case Settlements in Magistrates’ Courts’ (1994) 34 British Journal of Criminology 411 .

47. McConville et al, Standing Accused (n 40) 160.

48. ibid 195.

49. Blumberg, Abraham, ‘The Practice of Law as a Confidence Game’ (1967) 1(2) Law & Society Review 15 .

50. Tague, Peter, ‘“Barristers” Selfish Incentives in Counselling Defendants over the Choice of Plea’ (2007) Criminal Law Review 3 .

51. ibid.

52. Cheng, Kevin Kwok-Yin, ‘Pressures to Plead Guilty: Factors Affecting Plea Decisions in Hong Kong’s Magistrates’ Courts’ (2013) 53(2) British Journal of Criminology 257 .

53. The Turner guidelines were reinforced in Hong Kong cases such as R v Lam Yin [1995] HKFCI 473, [1995] 2 HKC 74 and R v Yeung Kuen Chi [1985] HKCA 129, [1985] 2 HKC 163.

54. Cheng, Kevin Kwok-Yin, ‘Guilty Pleas and Plea Bargaining’ in Wing Hong Chui and T W Lo (eds), Understanding Criminal Justice in Hong Kong (2nd edn, Routledge 2017) 227 .

55. Lo and Chui, Hong Kong Legal System (n 9).

56. Department of Justice (HK), ‘Prosecution Code’ (Department of Justice, Hong Kong Special Administrative Region 2013) paras 5.3–5.9.

57. Young, Simon N M, ‘Prosecutions Division of the Department of Justice’ in Mark S Gaylord et al (eds), Introduction to Crime, Law and Justice in Hong Kong (Hong Kong University Press 2009) 111 ; Cross, Ian Grenville, ‘Prosecuting Crime’ in Wing Hong Chui and T W Lo (eds), Understanding Criminal Justice in Hong Kong (2nd edn, Routledge 2017) 195 .

58. For cases in the Magistrates’ Court, statements of prosecution witnesses are supplied to the defense on request to the prosecution after a not guilty plea has been entered. See Knight, Christopher and Upham, Anthony, Criminal Litigation in Hong Kong (3rd edn, Sweet & Maxwell Hong Kong 2011) 104 .

59. ibid.

60. The Duty Lawyer Service, ‘The Duty Lawyer Service Council’ (Duty Lawyer Service, 2016) <www.dutylawyer.org.hk/en/about/council.asp> accessed 12 June 2017.

61. Chui, Wing Hong and Cheng, Kevin Kwok-Yin, ‘Perceptions of Fairness and Satisfaction in Lawyer-Client Interactions among Young Offenders in Hong Kong’ (2015) 11(2) Journal of Mixed Methods Research 266 .

62. Cheng, Kevin Kwok-Yin et al, ‘Providing Justice for Low-Income Youths: Publicly-Funded Lawyers and Youth Clients in Hong Kong’ (2015) 24 Social & Legal Studies 577 .

63. Cheng, ‘Pressures to Plead Guilty’ (n 52).

64. Cheng, ‘The Practice and Justifications of Plea Bargaining by Hong Kong Criminal Defence Lawyers’ (n 37); Cheng, Kevin Kwok-Yin and Chui, Wing Hong, ‘Beyond the Shadow-of-Trial: Decision-Making Behind Plea Bargaining in Hong Kong’ (2015) 43 International Journal of Law, Crime and Justice 397 .

65. Creswell, John W, Research Design: Qualitative, Quantitative, and Mixed Methods Approaches (4th edn, Sage 2013) 1516 .

66. Johnson, R Burke and Onwuegbuzie, Anthony J, ‘Mixed Methods Research: A Research Paradigm Whose Time has Come’ (2004) 33(7) Educational Researcher 14, 21 .

67. Cheng, ‘Pressures to Plead Guilty’ (n 52).

68. Magistrates Ordinance 1933, s 92.

69. Mileski, Maureen, ‘Courtroom Encounters: An Observational Study of a Lower Criminal Court’ (1971) 5(4) Law & Society Review 473 .

70. There were no cases of the prosecution withdrawing all charges.

71. There were no cases in the sample where a defendant cracked his or her trial after the trial had already started.

72. Hong Kong Bar Association (HKBA), ‘Code of Conduct’ (HKBA, 2017), para 10.56(a) <www.hkba.org/content/code-conduct> accessed 06 November 2017; Law Society of Hong Kong, ‘The Hong Kong Solicitors’ Guide to Professional Conduct’ (Law Society of Hong Kong, 2016), chapter 10.16 <www.hklawsoc.org.hk/pub_e/professionalguide/volume1/default.asp> accessed 12 June 2017.

73. Mike McConville et al, Standing Accused (n 40).

74. Cheng et al, ‘Providing Justice for Low-Income Youths’ (n 62).

75. Runciman (n 12) 112.

76. Blackwell, Brenda Sims and Cunningham, Clark D, ‘Taking the Punishment out of the Process: From Substantive Criminal Justice Through Procedural Justice to Restorative Justice’ (2004) 67(4) Law & Contemporary Problems 59 .

77. Feeley (n 8) 276.

78. Zander and Henderson (n 40).

79. Roberts, Julian V and Bradford, Ben, ‘Sentence Reductions for a Guilty Plea in England and Wales: Exploring New Empirical Trends’ (2015) 12(2) Journal of Empirical Legal Studies 187, 197198 .

80. Reyes, Anselmo, ‘The Future of the Judiciary: Reflections on Present Challenges to the Administration of Justice in Hong Kong’ (2014) 44(2) Hong Kong Law Journal 429 .

* Associate Professor, Faculty of Law, The Chinese University of Hong Kong.

Professor, Department of Applied Social Sciences, City University of Hong Kong.

Professor, Faculty of Law, University of Hong Kong.

§ Associate Professor, School of Law, City University of Hong Kong. Acknowledgment: This study was generously supported by a General Research Fund (GRF) from the Research Grants Council, University Grants Committee, Hong Kong SAR (Project No. 14401214). We would like to thank the following NGOs for their help in recruiting the interviewees: Kowloon City District Youth Outreaching Social Work Team, Kwai Tsing & Tsuen Wan Youth Outreaching Social Work Team, Kwun Tong District Youth Outreaching Social Work Team, Sham Shui Po District Youth Outreaching Social Work Team, Society for Community Organization, The Society of Rehabilitation and Crime Prevention, The Society for the Aid and Rehabilitation of Drug Abusers (Adult Female Rehabilitation Centre), and Youth Outreach- Transitional Housing for Girls. We would also like to thank Margo Mok, Henry Leung and Becky Leung for their excellent research assistance. Previous versions of this paper were presented at the East Asian Law and Society 4th Annual Conference, HKU-NUS-SMU Conference, Eleventh International Conference on Interdisciplinary Social Sciences, and the 6th Annual International Conference on Law, Regulations and Public Policy.

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