Question

After the ‘occupy’ protests, there was some public outcry that ‘while the

police made the arrests, the Court released the suspects/defendants.’

Therefore, there is reason to doubt whether the core elements of the

criminal justice system (i.e. the law enforcement agencies and the

courts) are working towards the same goal(s).

Critically examine this statement from the ‘system’ perspective on

the Hong Kong criminal justice system.

Answer 1

This question has the following parts to it, each of the part can be discussed in detail as follows :

i) The role of law in occupy movement
ii) The public ideology
iii) Analysing the Hong Kong criminal law system to determine if both the core elements of the
criminal justice system (i.e. the law enforcement agencies and the courts) are working towards the same goal(s).

1.Role of law in occupy movement :

Law suits had been filed, following actions by police and municipal officials inorder to use force in closing the various Occupy tent camps in public spaces.
Civil liberties organizations filed separate law suits against the FBI, As The FBI withheld documents requested under the FOIA quoting the reason that the withholding of giving the documents was purely within the interest of natiinal foreign policy.

In the year 2013, Ryan Shapiro, MIT doctoral student, who was collecting research on the role of the FBI in the Occupy movement.

He had sent the FBI three FOIA pleas regarding a potential plan to accumulate intelligence against the leaders of [Occupy-related protests] and also to obtain the photographs. He then formulated a plan to kill the leadership through the suppressed sniper rifles.
When the FBI refused the request of Shapiro, he went ahead and had filed a federal complaint in Washington, D.C., and gradually obtained the 17 pages. This redacted FBI document affirmed the Houston plot and opposed an earlier claim by the FBI that it had not opened an investigation on the Occupy movement prior.

2. Criminal justice system in hong kong ; Analysis of positive and negative aspects which lead towards the final judgement.

The Nature of Criminal Justice in Hong kong:

The correct exact nature of justice is a matter of debate.
Many consider the deduction or elimination of crime as the rightful proper goal of justice.According to this perspective, the criminal justice system is supposed to suppress and deter criminal behaviour or it fails at that inorder to process the guilty.

This conceptualization views the criminal justice system as if its a filter through which the suspected offenders shall pass.

The judgments of guilt and innocence are seen merely as a series of routine operations and processes . whose success is revealed by their ability to fastly and efficiently move the deserving onto the next stage and finally towards a befitting punishment.

Others on the contarary, have a perspective that the end product of the criminal justice system should be due process or the operation and not just the reduction of crime.

This position hence assumes an adversarial model of criminal justice.

Rather than being seen as a smoothly functioning assembly line, criminal justice is instead perceived as a series of hurdles. And each of these hurdles is specifically designed to provide formidable obstacles that avoid the state from inappropriately moving an innocent citizen further towards the criminal justice decision-making process.

The protection of the rights of the individual person and also the limitation of state power are primary concerns according to this view of criminal justice .
The Whole path a defendant follows is far away from the fixed or predetermined path.
The exact path depends on the decisions which are made along the way. These decisions can be made both by the defendant and by officials.

One of the result of these decisions is a considerable attrition rate. Many higher volumes of crimes are committed than which are reported or adjudicated.
Similarly, many more offenders are arrested than who actually go to prison.

Naturally, this type of attrition results from procedures and operations which are built into the system. These operations are the ones that sort out the innocent from the guilty.

But attrition can also be traced to a considerable degree of discretion with which it is built into the system.
From the police deciding and determining whether to investigate crime reports to prosecutors selecting whether to take a case to court, the very exercise of discretion by personnel within Hong Kong’s criminal justice system is a recurring and repeating theme.

Such Type of discretion tends to raise the spectre of a criminal justice system which is governed by whim rather than by law, and hence this has led to a number of observers to propose that discretion could be greatly reduced if not totally eliminated.

yet despite these concerns the discretion continues forward. For good reasons inorder to be an integral part of modern criminal justice systems.
Uniformity is one of the basic element of criminal law because law attempts to provide even-handed justice without respect to persons.

Uniformity means that no exceptions are to be made with regard to the criminal liability due to a person’s social status. This also means that the law-enforcement procedure is to be administered without any regard to the status of persons accused of committing crimes.
This ideal element is rarely followed in practice partly because it tends to result in injustices.

Rigid rule is softened through the discretion of police and judicial authorities. For example, The principle of uniformity demands that all the armed robbers are to be treated exactly the same way, but the police officers, judges, and others also tend to take into account the circumstances of each robbery and also the personal characteristics of each offender.

This practice is called individualization. And Such use of discretion is not unlike equity. Where a body of rules that supplements law and that has grown as a method of affording justice in situations where rigid regularity would be patently quiet unjust.

Similarly, much of what ever happens to a given person who is accused of crime is determined in a process of negotiation. Its about just what the law is and how or whether it should be applied .

In short summary, the criminal justice represents more than just a mere collection of laws and departments. And hence, this is why it may be quiet helpful to view the administration of justice as a series of stages, The Hong Kong’s criminal justice system is comprised of the following 4 stages. These stages are: (1) entry into the system, (2) commencement of criminal proceedings, (3) adjudication and sentencing, and (4) corrections.

Positives

The first feature of Hong Kongs criminal justice system is that the court system can serve as a level playing field for crimes.
Many divisions or hierarchy of courts can be been seen in Hong Kong. The Division of labor is also a principle applied to the court system. Beginning from the Magistrate’s Courts to the Court of Final Appeal, there are clear limitations on sentence, fines and offences of each level’s courts.

Another feature of Hong Kong’s criminal justice is the involvement of public during trials. In the common law systems, trial by jury is one of the fundamental elements.
As a common law system, Hong Kong adopting the jury system is “the strength of the Common Law System in Hong Kong. Where the Jurors are quiet responsible to decide on the facts on the evidence at the trial.
As a result, the judgment made by jurors is also based on the knowledge of a group of people who are subject tothe various social norms values and culture. And hence, helps in avoiding individual mistakes.
Since the jurors are more likely to offer a fairer hearing to a party, a fairer justice can be achieved. Furthermore, the principle of defence protects the human rights of Hong Kong people and contributes to one of the features of Hong Kong’s criminal justice system .
There are a number of principles of defence that are in accordance with Article 14 of the International Convenant on Civil and Political Rights which have been incorporated into Hong Kong’s criminal law system . This is to safeguard Hong Konger’s right.

Negatives

Hong Kong’s criminal justice system is not yet completely perfect.
One thing that must be progressed and improvised if Hong Kong intends to improve its criminal justice system is democratization.
Hong Kong’s current government is actually not democratically elected. And hence, it cannot fully respond to the demands of the public.
Similarly, to many of the issues, the SAR government tends to fail to respond to the public in issues of law and order . For exapmle; such as seeking the interpretation of Basic Law from NPCSC.
Improvements on law and order can be expected to appear in the coming years in a speedily democratizing society of Hong Kong.