chapter  13
Guilty pleas and plea bargaining
ByKEVIN KWOK-YIN CHENG
Pages 16

Article 87(2) of the Basic Law of the Hong Kong Special Administrative Region guarantees that: ‘Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs.’ However, a small proportion of cases actually result in contested trials before the courts. Like many other jurisdictions including England, Canada and the USA, most criminal cases in Hong Kong are resolved by guilty pleas. As illustrated in Table 13.1, most cases that appear in the District Court and Court of First Instance conclude with defendants pleading guilty (on average a guilty plea rate of 76% and 77%, respectively). In the Magistrates’ Courts, while statistics show a much lower ratio of guilty plea rates, the official figures include bind over orders as an acquittal. This is a point that will be returned to later in the chapter. Excluding bind over orders, Cheng (2013) found an approximately 60% guilty plea rate in Court No. 1 by defendants appearing in the Magistrates’ Courts. The frequency of guilty pleas is so high that some commentators have sug-

gested that the criminal justice system is geared towards the mass production of guilty pleas (Sanders et al., 2010). Others have asserted that there is a discrepancy between the due process protections stated in the law and the actual daily functions of the criminal justice system which systematically encourages guilty pleas (McConville and Mirsky, 1993). This chapter begins by outlining the law with respect to guilty pleas. Then it will move on to examine the sentence discount and factors that affect guilty pleas. Finally this chapter will conclude with a discussion on the controversial practice of plea bargaining.