Aggravating and Mitigating Factors in Context: Culture, Sentencing, and Plea Mitigation in Hong Kong

IF 0.4 Q2 Social Sciences
K. Cheng
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引用次数: 3

Abstract

Despite the significant role that aggravating and mitigating factors play in sentencing outcomes, they have been neglected by both policy and research. The purpose of this study is to examine the influence of culture—which has been deemed to be an “elusive” influence—in the plea mitigation and sentencing process. An empirical study was conducted to examine the effects of both offense-specific and offender-specific factors that may serve to aggravate or mitigate the sentence in a magistrate’s court in Hong Kong. Data was collected through courtroom observations of sentencing hearings ( n = 712). Statistical analyses reveal that Chinese cultural and social norms motivate judicial decisions, as defendants who did not conform to the cultural expectations of family, industry, enduring hardships, and maintaining good social order are likely to be sentenced more severely when they are convicted of a crime. A disciplinary model of sentencing is proposed to explain why certain factors are considered as aggravating in Hong Kong’s penal culture. These factors, however, are extraneous to the offense or the culpability of the offender. Implications and future directions are discussed.
背景下的加重和减轻因素:香港的文化、量刑和辩诉减刑
尽管加重和减轻因素在量刑结果中发挥着重要作用,但它们一直被政策和研究所忽视。本研究的目的是检验文化的影响-这一直被认为是一个“难以捉摸”的影响-在认罪减刑和量刑过程。本研究以实证研究的方式,探讨香港裁判官法庭对特定罪行及特定罪犯的判刑因素,对加重或减轻刑罚的影响。数据通过量刑听证会的法庭观察收集(n = 712)。统计分析表明,中国的文化和社会规范激发了司法判决,因为不符合家庭、行业、吃苦耐苦和维护良好社会秩序的文化期望的被告在被定罪时可能会被判处更重的刑罚。本文提出一种惩戒性的量刑模式,以解释为何香港刑罚文化中某些因素会被视为加重刑罚。然而,这些因素与犯罪行为或罪犯的罪责无关。讨论了影响和未来的发展方向。
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期刊介绍: Focused on examinations of crime and punishment in domestic, transnational, and international contexts, New Criminal Law Review provides timely, innovative commentary and in-depth scholarly analyses on a wide range of criminal law topics. The journal encourages a variety of methodological and theoretical approaches and is a crucial resource for criminal law professionals in both academia and the criminal justice system. The journal publishes thematic forum sections and special issues, full-length peer-reviewed articles, book reviews, and occasional correspondence.
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