Critically assess the pros and cons of plea bargaining. Should Hong Kong adopt the American model of plea bargaining, i.e., adopting plea bargaining as a means to reducing the workloads of the courts? Discuss.




            Plea bargaining is a system of resolving criminal cases through the achievement of an agreement between the prosecutor and defence regarding the guilty plea to some charges in exchange for the dropping of the other charges or a lower penalty depending upon the legal jurisdiction. Plea bargaining has been subject to a debate. On one hand, proponents argue that this system facilitates in the easy resolution of cases and lessens the cases pending in the court dockets (, 2003). On the other hand, critics of plea bargaining provide that this defeats the principles of the criminal justice system (, 2003), especially the adversarial process and the assumption of innocence prior to a finding of guilt through the determination of a judge or a jury depending upon the practice of a legal jurisdiction. Arguments find resolution through the recognition that plea bargaining serves an important role in the criminal justice system so this cannot be removed from existing practice. However, the application of plea bargaining should also be customised according to the context of a particular jurisdiction. In the case of Hong Kong, its current utilisation of charge bargaining, akin to the plea bargaining applied in English fits its context of having a relatively lower crime rate, strong police force, and established criminal justice system able to resolve the volume of criminal cases. Moreover, Hong Kong also applies various alternative dispute resolution processes that support the timely resolution of cases and delivery of justice. There is yet no need to adopt the American model of plea bargaining.


Hong Kong Crime Rate & Judicial System

            According to the  (2007), crime rate in Hong Kong has increased by 4.3 percent when comparing crime statistics from January to April 2006 and in the same period in 2007.  (2007) reports that the population of Hong Kong grows at an average rate of .9 percent every year. When these data are taken together, Hong Kong remains to have a low crime rate relative to previous statistics as well as the crime statistics of other countries.

            The relative low crime rate has been attributed to the several factors. First is the strong application of rule of law in Hong Kong. Despite the change in governance from the British to China (PRC) since the legal and judicial system in Hong Kong has been retained despite this change so that Hong Kong has been able to achieve consistency in its implementation of laws to maintain and ensure peace and order. (, 2003) Applying the rule of law in the context of Hong Kong also involved the integration of customary law in judicial practice in order to cover the various cultural issues arising in the law enforcement and case adjudication.      

            Second is a strong police force (, 2003) owing to their training in physical contact and utilisation of high-technology weapon as well as the impressive ratio of police force to population so that a police officer is tasked to protect or ensure the safety of a relatively smaller number of people ensuring a low crime rate. Apart from the Royal Hong Kong Police Force, Hong Kong also has an Auxiliary Police Force that assists in law enforcement duties.

            Third is the well-established judicial system (, 2003) that sufficiently provides channels and processes of conflict and case resolution. Hong Kong also has a hierarchical judicial system to accommodate the resolution of criminal, civil and special cases. Apart from this, recent decisions of the Hong Kong courts have also supported the application of alternative dispute resolution as a means of settling conflicts in order to ensure ease in conflict resolutions.  v  (2005) provides for the exercise of court powers in order to support arbitration for cases appropriately settled through this alternative dispute resolution.  v  (2005) resolves issues on the workability of contract clauses on dispute resolution with the effect of encouraging contracting parties to state out clearly the specifics of arbitration clauses. A well-established Hong Kong judicial system ensures that cases presented to the courts are efficiently addressed.

            A low crime rate due to the application of the rule of law, a strong police force and a well-established judicial system has a direct implication on the volume of cases in the court dockets. Conflicts or cases that can be settled through alternative means are referred for alternative dispute resolution so that court dockets are not unnecessarily burdened. Moreover, a low crime rate means that there is lesser number of cases for courts to settle. This also has an impact on plea bargaining.


Plea Bargaining

            Plea bargaining is the process involving the agreement between the prosecutor and the defendant on the settlement of a criminal case. The agreement usually involves the acquiescence on the part of the defendant to plead guilty in exchange for a lesser punishment or the dropping of the charges corresponding to a more severe penalty and being charged with a crime involving a less severe penalty. ( and , 2006)The implication of a plea bargain is that the case does not have to be resolved through jury proceedings since the case will be settled through the presentation of the merits of the case to the presiding judge.

            Plea bargaining has widespread application since this applies in both civil law and common law jurisdictions ( and , 2006.) However, this has been subject to widespread debate because of its impact on different areas of the judicial system. On one hand, the most imposing justification for the practice of plea bargaining is easing of the court dockets because the resolution of the case involves lesser time and complications compared to a trial by jury. This means that with plea bargaining, courts are able to resolve cases faster to prevent the clogging of court dockets. On the other hand, an important argument against plea bargaining is that in practice, this opens opportunities for inequity. In some cases, the extent of benefit that the defendant derives from the plea bargaining process depends upon the negotiating prowess of the defence lawyer relative to the prosecution or vice versa. There are also instances when defendants are forced to plead guilty even when they initially claim innocence in order to serve a lesser sentence especially with pressure from the prosecution or the defence lawyer. This defeats the purpose and importance of an adversarial system and the presumption of innocence.    

            Plea bargaining has its pros and cons so that the application of this process in different jurisdictions as well as the manner and extent that this is implemented depends upon the exigencies of the context of a legal jurisdiction, such as in Hong Kong. 


Plea Bargaining in Hong Kong

            Although widely influenced by common law, that applies plea bargaining subject to the certain conditions, Hong Kong has not established a formal process for plea bargains (, 2003). In jurisdictions applying common law, plea bargaining is allowed provided the prosecution and defence agree on the guilty plea to the lesser charge so that the prosecution drops the other charges. In case plea bargaining is applied, the court reserves the power of determining the penalty so that specific penalty does not form part of the plea bargain agreement. Common law practice of plea bargaining then serves the purpose of efficiently resolving the case but this highly depends upon the agreement of the parties. The element of agreement on the facts of the case, the plea of guilt, and the dropping of other charges ensures that the plea bargain agreement resulted from negotiations between the parties for a fair trade and not just due to pressures from the prosecution to ease piling cases. This application of plea bargaining subject to qualifications is different from the widespread implementation of plea bargaining in the United States with the process forming part of the criminal justice systems with the agreement subject only to the approval of the court. Uniformity in the application of plea bargaining is ensured in the different states through the development of federal standards for the application of this process in criminal cases. With the rampant application of plea bargaining, the primary purpose of this process becomes the de-clogging of court dockets regulated only by the federal standards.

            Hong Kong applies a semblance of plea bargaining through its allowance of charge bargaining. In this process, a person accused of a crime may exercise the option of pleading guilty to the lesser charge presented during the indictment. (, 2003) This means that the accused will be prosecuted on the lesser charge on the plea of guilt so that the accused will be charged with indecent assault in lieu of rape because of the guilty plea on the lesser charge. This same approach could also apply in instances where the accused has been charged with several crimes or a number of counts for the same crime.      

            Charge bargaining forms part of summary procedures covering the efficient resolution of criminal cases. Summary proceedings are primarily applied in order the ease court dockets due to the rising cases raised to the courts for resolution. In China and Hong Kong, summary procedures become an option in criminal cases where the facts of the case are clear and undisputed, the accused pleads guilt, and the evidence sufficiently supports the charge. Summary proceedings occur in the courts of first instance and one judge handles the proceedings. The application of charge bargaining in Hong Kong is akin to that of plea bargaining in common law jurisdictions because the applicability of the agreement depends upon certain factors. In English criminal jurisdiction, the key element is the agreement between the prosecution and the defence on the plea of guilt and concurrent dropping of charges while in Hong Kong there should be an agreement on the facts, plea and evidence of the case.

            The parallelism of charge bargaining in Hong Kong with the plea bargaining in the UK implies several things on the nature of the application of the process on Hong Kong. One is the consideration of charge bargaining as a supporting process to criminal adjudication because this only applies in instances when the elements are present. Otherwise, if facts are not clear, the defendant refuses or hesitates to plead guilty, or the evidence is insufficient to support the plea of guilt, then plea bargain agreement would probably not be approved by the court. Another related implication is the purpose of de-clogging of court dockets serving only a secondary purpose with the efficient resolution of the case as the primary purpose. This is based on the assumption that efficiency in case resolution does not necessarily mean that this is directed towards the de-clogging of piling court cases. Efficiency has a more direct relationship with the timely delivery of justice more than merely easing the caseload of the courts although efficiency also eases court dockets.

            Recently, with the rise in caseload of courts in China requiring the need for case management strategies, the issue of shifting the perspective of plea bargaining from the English perspective to the US perspective emerged. At the core of the issue is the utilisation of plea bargaining as a widespread process in criminal case resolution similar to the system in the United States. Since Hong Kong is an administrative region of China, this issue also affects Hong Kong.


Adopting the American Model of Plea Bargaining

            Plea bargaining developed in the United States as a case management strategy because of the sheer number of cases handled by the state courts. This is due to the big and still growing population of the United States so that even if the country has a developed and established criminal justice system, the courts still hold tight court dockets requiring the common application of a system that allows the courts to resolve cases within the shortest possible time. Together with the implementation of alternative dispute resolution, plea bargaining became an important manner of easing the court dockets.

            In the case of China, it also has a big population and with the opening of its economy to the world together with the increase in foreign influences, crimes are expected to rise and the courts are expected to handle more criminal cases. However, China has a strong customary law linked with the socialist perspective that allows the country to deter crimes at the same time engage in various forms of conflict resolution that does not necessarily involve the courts. China applies administrative detention covering certain crimes that works by committing the accused under the custody of certain organisations to facilitate rehabilitation. Although, the purpose and importance of administrative detection is evolving with the development of the judicial system in China, this alternative together with other dispute resolution methods should aid the courts in handling the rising number of criminal cases. Moreover, the current application of plea bargaining also serves the purpose of allowing the courts to deliver justice in a timely manner while easing its court dockets.

            In the case of Hong Kong, a look into the crime rate, law enforcement and courts show that Hong Kong is in control of its court dockets. The justice system is well established and well integrated to ensure uniformity of adherence to the purpose of delivering justice without undue delay. Hong Kong crime rate shows that even with the increase in the number of crimes when compared to the previous year, the increase should be interpreted with the rise in the population of Hong Kong, especially with the great number of illegal workers, so that the increase is low relative to other legal jurisdictions. The crime rate translated into court cases should be manageable with the present criminal justice system including the application of charge bargaining. The law enforcement authorities of Hong Kong are also sufficient in number apart from being trained in high technology weapons and combat techniques. This means that the police force of Hong Kong is able to effectively prevent crimes from happening through police presence in various areas as well as deal with occurring crimes through speedy response. When law enforcement authorities are able to prevent the commission of crimes, there would also be lesser number of cases filed in the criminal courts. Hong Kong courts apply charge bargaining in instances when the accused pleads guilty to a lesser charge together with the agreement on the facts and sufficiency of evidence. This means that the Hong Kong courts already apply a semblance of plea bargaining except that this only serves as a supporting system to the courts and not a general rule in the resolution of criminal cases. Since Hong Kong courts still deal with court dockets effectively with its current system there is little justification to shift to the American model of plea bargaining.



            Although the criminal justice system is not perfect, adopting the American model of plea bargaining does not address its flaws or weaknesses. In the case of court docket management, Hong Kong criminal justice system remains in control of the speedy resolution of cases through its implementation of charge bargaining and alternative dispute resolution to support case resolution by allowing cases to be settled through these systems subject to certain conditions ensuring consistency with fairness in due process and justice delivery. There is no need to complicate the system by shifting to the American model that could de-stabilise the criminal justice system when the shift is not a current necessity based on the Hong Kong context.






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