Justice based on family background?

24 August, 2010

She is the niece of a top judge in the city. She has assaulted a policeman for the third time – and this time slapping an officer in his face right in front of a television camera, after her car veered into the wrong lane and clashed into a coach and she refused to take a breath test.




It came as no surprise that the trial of Amina Bokhary’s case caught much media attention.



And it would be reasonable for any member of the public to find it too light a sentence that she was put on one-year probation, fined HK$8,000 and disqualified from driving for one year for a total of three charges she was convicted of.



Had the defendant not been Bokhary, I would still find it too lenient a penalty on someone who had demonstrated such incivility and blatantly disregarded the rule of law.

Judging from the facts known so far, I see no evidence suggesting that the woman’s family tie with Court of Final Appeal judge Kemal Bokhary had led magistrate Anthony Yuen Wai-ming to favour her in the ruling. It would be too convenient to impute motives to the magistrate solely by seeing the defendant’s kinship. But Mr Yuen’s judgment did cast legitimate worries on anyone who cares about justice in Hong Kong.

In his own words, the magistrate has handed down the sentence taking into account the defendant’s “good background, a well-off family, good education and outstanding academic achievement with a first-class honour in bachelor of business administration," and “most importantly”, her “caring and concerned parents."

Does it mean a criminal who has challenged the law in the same way as Amina Bokhary did should be given a heavier sentence if he or she is an orphan and an underachiever at school? According Mr Yuen’s logic, the answer is yes. I would not try to argue that Bokhary’s mental problem was merely an excuse, for I believe people with genuine medical conditions which affect their behaviour in a way relevant to the offences they commit deserve more forgiveness than those who are healthy enough to master their own acts. But it is totally unconvincing to say someone with a well-off, warm family should be forgiven more than someone from a poor broken family for the same crime they have committed. Is it one’s fault to have a humble family background? It is equally disturbing to envisage an offender with a first-class honours degree treated more clemently than a secondary school leaver, who already has fewer opportunities in the society. Shouldn’t one be more civil-minded after receiving good education? If not, what is education for?



The appeal of the sentence on Amina Bokhary is important not just because a higher court will review the sentence in this particular case. It will hopefully be an occasion for a higher court to judge whether the reasoning behind Mr Yuen’s judgment should be upheld.