Hong Kong’s justice department has asked an appeal court to remove a three-decade old rule and allow prosecutors to recommend specific punishments for certain offenders, but a judge declined to immediately consider the request given its potential “huge impact” on the legal system.

The suggestion was made during a sentence review hearing on Thursday, where a senior prosecutor asked three appeal justices to hand down a heavier penalty to a 16-year-old who was given a three-year probation for hurling a petrol bomb at a police building at the height of the anti-government protests
in 2019.

Deputy Director of Public Prosecutions Vinci Lam Wing-sai said the Court of Appeal should review the rule it laid down in a 1989 judgment that states lawyers should only refer to well-established sentencing guidelines, instead of suggesting particular punishments. For instance, lawyers should select appeal cases centred on offences that suggest a scale of penalties and list out factors for consideration.

Lam said: “The rule has been here for 31 years. Does the court think it’s time to review prosecutors’ role in this regard?”

Courts do not have sentencing guidelines on arson offences to allow judges to make flexible judgments based on the circumstances of a case. Neither are there guidelines for certain other offences such as rioting and assaulting police.

The teen defendant was spared a custodial sentence in August last year by a magistrate, who cited guidelines by the Sentencing Council for England and Wales and agreed a probation was suitable.

Lam argued that in the absence of precedent, prosecutors should be entitled to recommend particular sentences if there had been similar punishments, even though they were not necessarily binding.

While the judges agreed on a heavier punishment for the teen following an assessment, they did not take the prosecutor’s suggestion.

Chief Justice of the High Court Jeremy Poon Shiu-chor said Thursday’s hearing was not an appropriate platform for discussing the matter, which could potentially have a “huge impact” on the legal system.

“It is the common law practice all along that the prosecution does not make recommendations on particular sentences,” Poon said.

Lam’s suggestion came days after a lower court judge, in handling a protest case, questioned prosecutors’ refrain from assisting in sentencing with recommendations on the appropriate terms and discounts, amid criticism from the appeal court and politicians’ demands for reform.

Before Thursday’s hearing, the Department of Justice had applied to the Court of Appeal to review the sentences in nine protest-related cases, with the defendants involved all receiving tougher punishments.

Pro-Beijing politicians have been calling for a sentencing council as they allege some punishments given to protesters are too lenient. But speaking at the ceremonial start of the legal year on Monday, new Chief Justice Andrew Cheung Kui-nung rejected the idea, noting that deciding guilt and meting out punishment had always been the function of the bench.

However, he pledged to expedite appeal hearings that carried important implications to help guide lower courts.

Thursday’s appeal centred on an arson attack on the Chai Wan Police Married Quarters on the afternoon of November 18, 2019, a day marked by violent clashes outside Polytechnic University.

The 16-year-old defendant was seen launching a firebomb at the premises. The bomb hit a window of one block before landing at a car park below.

The appeal court, also presided over by justices Derek Pang Wai-cheong and Maggie Poon Man-kay, ruled the original sentence was “manifestly inadequate” as the magistrate had erred in underestimating the gravity of the offence.

The court quashed the probation order and remanded the boy in custody until sentencing on February 4, pending assessments on his suitability for correctional training.