The Exercise of Discretion in the Criminal Justice System

Abstract Discretion is different from the performance of a duty. The law provides a framework within which a discretionary decision is made but does not dictate the actual decision. Modern day discretions are now narrowly confined. But determining what is fair and just requires a flexible approach to decision-making. With a flexible approach, discretion allows fairness, compassion and humanity to be employed in our system of criminal justice. Discretion is crucial to ensuring the defendant receives a fair trial. In Hong Kong, the Department of Justice exclusively controls criminal prosecutions, free from any political or other interference. The Secretary for Justice must act within constitutional power and not on political instruction, in bad faith or be fettered by a rigid policy. Three areas of discretionary decision-making call for comments. The scheme of cautioning offenders instead of prosecuting them should be extended to adult offenders. Given the limited remedies for challenging prosecutorial decisions, prosecutors should explain adverse decisions to defendants in a way which clearly sets out the reasoning for the decision. Sentencing guidelines for drug trafficking offences should promote general consistency, rather than perfect consistency, and leave room for discretion that is not merely illusory.