Hong Kong, 2 October 2024: A large audience gathered at the University of Hong Kong to hear former Justice of Appeal Ian McWalters deliver the sixth annual HKU-Boase Cohen & Collins Criminal Law Lecture.
His talk, “The Exercise of Discretion in the Criminal Justice System”, examined discretionary decision making by law enforcement, prosecutors and judicial officers and how it contributes to the fairness of the criminal justice system.
Ian told the audience: “I believe that discretion plays a crucial role in the criminal justice system in its potential to bring flexibility and fairness to the operation of the system. The exercise of discretion arises … in every area of our criminal justice system; during the law enforcement investigation; in the prosecution stage; in the judicial process and even in the treatment of a prisoner whilst serving a sentence of imprisonment.”
He devoted part of his address to sentencing guidelines for particular offences and how a judge must reconcile these with the question of sentencing discretion. He was particularly concerned that in respect of drug trafficking, judges are given minimal leeway and that even the offender’s age cannot be taken into account.
“In every other offence our sentencing of teenagers is focused on rehabilitation and I would argue there is no reason not to adopt the same focus with the offence of drug trafficking,” he stated. “I am not at all persuaded by the argument that should we do so there will be a flood of teenagers committing this offence on our streets. I would strongly argue that this is an aspect of our drug trafficking sentencing regime that merits an intellectually rigorous review.”
The lecture concluded with a Q&A session between Ian and the audience moderated by Professor Simon Young from HKU’s Faculty of Law. Attendees included leading figures from the Judiciary, senior counsel, academics and students.
Ian served as a Justice of Appeal of the Court of Appeal of the High Court from 2014-21, having previously been Director of Public Prosecutions from 2009-11. He currently sits as a Chairman of the Market Misconduct Tribunal and the Securities and Futures Appeals Tribunal.
The first four editions of the lecture were delivered by a quartet the most renowned King’s Counsel in England and Wales, namely Clare Montgomery, Edward Fitzgerald CBE, Geoffrey Robertson and former Director of Public Prosecutions Lord Ken Macdonald. The fifth talk was given by the former Chief Justice of Hong Kong, the Honourable Geoffrey Ma GBM KC SC.
Says BC&C Managing Partner Alex Liu, who introduced Ian at the start of the evening: “We are immensely grateful to Ian for his compelling address. This was our sixth annual lecture and we have been fortunate to attract a succession of outstanding speakers.”
