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The Practice and Justifications of Plea Bargaining by Hong Kong Criminal Defence Lawyers

  • Kevin Kwok-yin CHENG (a1)
Abstract
Abstract

Unlike Western common-law jurisdictions where plea bargaining has been acknowledged, official discourse in Hong Kong denies the existence of plea bargaining. However, defence lawyers are staunch supporters of its use behind the scenes. Using in-depth, semi-structured interviews with Hong Kong criminal defence lawyers, it was found that lawyers’ justifications are based on four main grounds: it is non-coercive because the final decision is left to the accused; negotiations avoid the risks of trials; plea bargaining is a practical solution that is in the best interests of the client and the state; and the courts implicitly tolerate the practice. The findings can be explained by Eisenstein and Jacob’s (1991) courtroom workgroup model. The present study seeks to bridge the gap in the literature where plea bargaining has only been discussed predominately in the context of Western common-law jurisdictions.

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Kevin Kwok-yin Cheng, JD, PhD, is Assistant Professor in the Faculty of Law, the Chinese University of Hong Kong. His research interests revolve around issues in criminal justice and criminology. His works have appeared in the British Journal of Criminology, Asian Journal of Criminology, and International Journal of Offender Therapy and Comparative Criminology.

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This list contains references from the content that can be linked to their source. For a full set of references and notes please see the PDF or HTML where available.

Albert Alschuler (1968) “The Prosecutor’s Role in Plea Bargaining.” 36 University of Chicago Law Review 50112.

Albert Alschuler (1975) “The Defense Attorney’s Role in Plea-Bargaining.” 84 Yale Law Journal 11791313.

Albert Alschuler (1976) “The Trial Judge’s Role in Plea Bargaining.” 76 Columbia Law Review 10591154.

Albert Alschuler (1981) “The Changing Plea Bargaining Debate.” 69 California Law Review 652730.

Stephen Bibas (2004) “Plea Bargaining Outside the Shadow of Trial.” 117 Harvard Law Review 24632547.

Abraham Blumberg (1967) “The Practice of Law as Confidence Game: Organizational Cooptation of a Profession.” 1 Law & Society Review 1540.

Kevin K. Cheng (2013) “Pressures to Plead Guilty: Factors Affecting Plea Decisions in Hong Kong’s Magistrates’ Courts.” 53 British Journal of Criminology 257275.

Debra S. Emmelman (1996) “Trial by Plea Bargain: Case Settlement as a Product of Recursive Decisionmaking.” 30 Law & Society Review 335360.

Debra S. Emmelman (1997) “Gauging the Strength of Evidence prior to Plea-bargaining: The Interpretive Procedures of Court-Appointed Defense Attorneys.” 22 Law & Social Inquiry 927955.

Milton Heumann (1974) “A Note on Plea Bargaining and Case Pressure.” 9 Law & Society Review 515528.

John H. Langbein (1979) “Understanding the Short History of Plea-Bargaining.” 13 Law & Society Review 261272.

David Lynch (1994) “The Impropriety of Plea Agreements: A Tale of Two Counties.” 19 Law & Social Inquiry 115134.

Mike McConville (1998) “Plea Bargaining: Ethics and Politics.” 25 Journal of Law & Society 562587.

Mike McConville (2007) “Politicians and Prosecutorial Accountability in Hong Kong.” 36 Common Law World Review 355388.

Mike McConville , Jacqueline Hodgson Lee Bridges & Anita Pavlovic (1994) Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain, Oxford: Clarendon Press.

Stephen J. Schulhofer (1994) “A Wake-up Call from the Plea-Bargaining Trenches.” 19 Law & Social Inquiry 135144.

Marvin B. Scott , & Standford M. Lyman (1968) “Accounts.” 33 American Sociological Review 4662.

Robert E. Scott , & William J. Stuntz (1992) “Plea-Bargaining as Contract.” 101 Yale Law Journal 19091968.

Wing Hong Chui , & Kevin K. Cheng (2013) “The Mark of An Ex-Offende: Perceived Discrimination and Self-Stigma of Young Men After Prison in Hong Kong.” 34 Deviant Behavior 671684.

Gail Kellough , & Scot Wortley (2002) “Remand to Plea: Bail Decisions and Plea Bargaining as Commensurate Decisions.” 42 British Journal of Criminology 186210.

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Asian Journal of Law and Society
  • ISSN: 2052-9015
  • EISSN: 2052-9023
  • URL: /core/journals/asian-journal-of-law-and-society
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