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Article: Delay in Prosecution as a Mitigating Factor in Hong Kong: Towards Doctrinal Coherence
Title | Delay in Prosecution as a Mitigating Factor in Hong Kong: Towards Doctrinal Coherence |
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Authors | |
Issue Date | 22-Aug-2022 |
Publisher | SAGE Publications |
Citation | The Journal of Criminal Law, 2023, v. 87, n. 5-6, p. 305-328 How to Cite? |
Abstract | 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. |
Persistent Identifier | http://hdl.handle.net/10722/346138 |
ISSN | 2023 Impact Factor: 0.6 2023 SCImago Journal Rankings: 0.223 |
DC Field | Value | Language |
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dc.contributor.author | To, Chi Pong | - |
dc.contributor.author | Wan, Trevor TW | - |
dc.date.accessioned | 2024-09-11T09:25:05Z | - |
dc.date.available | 2024-09-11T09:25:05Z | - |
dc.date.issued | 2022-08-22 | - |
dc.identifier.citation | The Journal of Criminal Law, 2023, v. 87, n. 5-6, p. 305-328 | - |
dc.identifier.issn | 0022-0183 | - |
dc.identifier.uri | http://hdl.handle.net/10722/346138 | - |
dc.description.abstract | <p>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.<br></p> | - |
dc.language | eng | - |
dc.publisher | SAGE Publications | - |
dc.relation.ispartof | The Journal of Criminal Law | - |
dc.rights | This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. | - |
dc.title | Delay in Prosecution as a Mitigating Factor in Hong Kong: Towards Doctrinal Coherence | - |
dc.type | Article | - |
dc.identifier.doi | 10.1177/00220183221110380 | - |
dc.identifier.volume | 87 | - |
dc.identifier.issue | 5-6 | - |
dc.identifier.spage | 305 | - |
dc.identifier.epage | 328 | - |
dc.identifier.eissn | 1740-5580 | - |
dc.identifier.issnl | 0022-0183 | - |