The guilty plea process in the Hong Kong magistrates' courts

Abstract

Guilty pleas are the primary mode of criminal case dispositions in the common law world. Given how guilty pleas effectively waive the need for trials, it has been regarded as undermining due process safeguards. Although the written law in Hong Kong emphasizes the importance of ensuring defendants make their plea decisions free from any improper pressure, it neglects the intrinsic pressures brought upon by having to go through the criminal justice process. This is particularly true in the lower courts in Hong Kong and other common law jurisdictions. According to the Pre-trial Process Model (Feeley, 1979), because the offences that appear in the lower courts are relatively minor, the time and effort required of defendants often outweigh the sentences imposed on them. A lacuna however, exists in Hong Kong where guilty pleas have not been systematically analysed. The research questions of this study are: 1) Which factors influence decisions to plead guilty?; 2) Why are these factors salient in the plea decision-making process?; 3) What are the considerations of defence lawyers behind plea advices; and 4) How do plea negotiations operate in Hong Kong? Data collection involved courtroom observations in two Hong Kong Magistrates’ Courts (N = 1,008 cases) and in-depth interviews with defence lawyers (N = 26). Quantitative data were collected for both legal and extra-legal variables that were relevant to plea decisions. Legal variables included: the types of offence, the number of charges and whether an admission was made under caution. Extra-legal factors included: bail status, type of legal representation and demographic characteristics of defendants. Logistic regression analyses indicate that defendants who made an admission under caution, represented themselves in-person, and were remanded in custody, are more likely to plead guilty. Interviews and courtroom interactions are used to shed light on decision-making during the pre-trial stages of criminal procedure including lawyers’ advices and the practice of plea bargaining, and moreover substantiate the quantitative findings. Thematic analyses reveal that most defendants plead guilty in order to terminate as quickly as possible the stress and sanctions of being caught up in the criminal process and also to secure sentencing discounts for guilty pleas. This lends support to the notion that the process itself is already the punishment and that enticements to plead guilty are significant. As there is little empirical research into the daily operations of the justice system in Hong Kong, this study offers important insights. Theoretically, this study enhances the Pre-trial Process Model, and expands on it by focusing not only on the costs of going through the criminal justice process but also the benefits secured in return for a guilty plea. This revised version of the Pre-trial Process Model, named the Cost and Benefit Model, can be used to predict the likelihood of guilty pleas and explain the phenomenon of guilty pleas. As for practical significances, it illuminates on which groups of defendants are most susceptible to pleading guilty and provides recommendations in order to safeguard against the innocent pleading guilty.