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Project Details
Funding Scheme : General Research Fund
Project Number : 14401214
Project Title(English) : The causes and effects of ‘cracked trials’: An empirical study in the Hong Kong Magistrates’ Courts 
Project Title(Chinese) : “破損的審判” 的原因及效應:在和香港裁判法院的實證研究 
Principal Investigator(English) : Dr Cheng, Kevin Kwok Yin 
Principal Investigator(Chinese) : 鄭國賢 
Department : Faculty of Law
Institution : The Chinese University of Hong Kong
E-mail Address : kevincheng@cuhk.edu.hk 
Tel : 39434428 
Co - Investigator(s) :
Dr Chui, Eric Wing Hong
Dr ONG, Rebecca Yoke Chan
Prof Young, Simon
Panel : Humanities, Social Sciences
Subject Area : Social Sciences
Exercise Year : 2014 / 15
Fund Approved : 512,000
Project Status : Completed
Completion Date : 31-12-2017
Project Objectives :
To investigate which legal and extra-legal variables influence defendants to plead guilty at the start of trial;
To compare defendants that plead guilty at the first opportunity with those who enter late guilty pleas;
To ascertain whether defendants are pressured into changing their pleas or playing the system; and
To provide recommendations based on empirical evidence that will improve the criminal justice system in Hong Kong.
Abstract as per original application
(English/Chinese):

本次研究的目的是了解被告在法庭審訊開始前認罪的決定的原因及影響,一個被稱為“碎損的審訊”的現象。 被告認罪是香港及其他普通法系地區案件完結最首要的方式。 選擇認罪可以賦予被告一個展示其悔意的機會並會得到相應的判刑寬減。對政府來講,被告認罪可以節省法庭本來用作開庭審訊的資源,可以使檢控官專注於其他案件,還可以是案件證人免於出庭作證,從而節省公共開支。但是, 當被告臨開庭審訊前選擇認罪,因此而引致的公共開支可能更高,其原因在於當被告在事前已經選擇開庭審訊進行抗辯,但其後又在開庭前改變其不認罪的初衷。這種現象被稱為“碎損的審訊”,因為這種現象為法庭審訊的進行帶來了阻礙。法庭在人員上的花費包括 --- 法官,檢控官,辯護律師 (特別是當律師是由政府所資助的),甚至包括法庭文書人員,庭警,法庭證人都要出席的開銷統統都白费了。在其他普通法系的地區,其中包括英國及澳洲,已經採納了相應的政策降低被告在開庭審訊前臨時改變由抗辯到認罪的機會及做法,香港正考慮引入該等政策。這個問題最有趣的地方是,假設被告因悔意而預備認罪,其何不在第一次有機會認罪的時候選擇認罪呢? 是次研究將集合不同的研討方法。 第一,將出席香港裁判法院旁聽其審訊以追踪的刑事案件的審訊過程,其中的觀察所得可以用來量化並檢驗影響被告認罪的一系列與法律相關及不相關的變量因素。這些變量因素包括犯罪類型,被控告的次數,針對被告人的證據,代表律師,保釋情況,犯罪記錄和人口統計特徵的類型。這兩種二元和多元分析將用來評估哪些因素的影響“破損的審判”。第二,部分被告將會接受訪問。此舉有助解釋為什麼某些因素比其他因素更突出。最後,部分法律執業者(辯護律師,檢察官和法官)也將接受採訪,以了解及研究“破損的審判”對法院系統的影響。 這項研究將有助於確定哪些變量因素最有可能影響到被告認罪或不認罪的決定,並從被告及法律執業者的層面上了解及解釋為何被告在開庭前改變初衷選擇認罪。根據這些研究結果,這項研究將提供政策建議,以平衡香港的司法系統的高效運行,同時確保無辜的被告受到保護。
Realisation of objectives: Overall, all the objectives set out in the proposal have been successfully achieved. Data collection of this study comprised of two stages. Courtroom observations were conducted in a Magistrates’ Court in Hong Kong to collect relevant legal and extra-legal variables to determine which variables would influence defendants, who had initially entered a not guilty plea, into pleading guilty at the start of trial. These variables included: the type of offense, the type of legal representation, the circumstances of the case, the background of the defendant, and changes since the initial plea arraignment (when defendants are able to plead guilty at the first opportunity). Information on a total of 427 cases were collected in the study period. Interviews were then conducted with a sample of 58 defendants and 16 legal practitioners, including barristers, solicitors, prosecutors and magistrates, to achieve a deeper understanding of why defendants might enter late guilty pleas, especially to ascertain whether they are ‘playing the system’ or that there are pressures that lead them to make this decision. The advantage of this mixed methods design allowed for the use of qualitative data to help explain the quantitative results as well as provide stronger empirical evidence through the convergence of both methods. The findings of the study were then used to provide recommendations that will enhance the operations of the criminal justice system of Hong Kong.
Summary of objectives addressed:
Objectives Addressed Percentage achieved
1.To investigate which legal and extra-legal variables influence defendants to plead guilty at the start of trial.Yes100%
2.To compare defendants that plead guilty at the first opportunity with those who enter late guilty pleas.Yes100%
3.To ascertain whether defendants are pressured into changing their pleas or playing the system.Yes100%
4.To provide recommendations based on empirical evidence that will improve the criminal justice system in Hong Kong.Yes100%
Research Outcome
Major findings and research outcome: This project resulted in a number of papers presented at international conferences and publications in esteemed international peer-reviewed journals. It was found that defendants who were represented by publicly-funded lawyers or who were held in prolonged pre-trial detention were more disposed into entering late guilty pleas. It was also found that contrary to arguments made elsewhere, the findings do not support the notion that defendants enter late guilty pleas solely because they are trying to gain some form of tactical advantage i.e. playing the system. The mainstay of the research findings is published in an article in the Asian Journal of Comparative Law (Cambridge University Press). To delve deeper into the experiences of defendants, two groups were examined: emerging adults and defendants who were held in pre-trial detention. For the first group, it was discovered that emerging young adult defendants had a lack of understanding of the justice system, faced stress in being caught up in the justice process, and were susceptible to influence by others in making legal decisions including plea decisions. The findings can be found in an article published in the International Journal of Offender Therapy and Comparative Criminology (Sage). For defendants in pre-trial detention, it was revealed that pre-trial detention was already punitive which help to explain why defendants who are remanded in custody are more likely to plead guilty. An article on this has been accepted for publication in the Howard Journal of Crime and Justice (Wiley). Interviews with legal practitioners demonstrated that there are informal mechanisms that are used to manage the adverse effects that late guilty pleas may bring. The findings offer insights regarding strategies and reforms on other aspects of the criminal procedure in responding to late guilty pleas. An article on this is published in Common Law World Review (Sage).
Potential for further development of the research
and the proposed course of action:
There is great potential for further research in this area. During the study period, the sentencing guidelines have changed in Hong Kong with respect to the sentence discount for guilty pleas. Previously, a one-third sentence discount was generally given to all defendants who pleaded guilty regardless of when the plea was entered. Nowadays, the court must consider the stage of when the plea was entered in handing out sentence reductions. My co-investigators and I have submitted a new GRF proposal, which has been accepted, to investigate the the impact of the timing of guilty pleas on court sentencing under Hong Kong’s new sentencing framework for guilty pleas.
Layman's Summary of
Completion Report:
This project investigated the phenomenon of ‘cracked trials’, namely why defendants enter late guilty pleas when they had initially indicated that they were ready to test the state’s case at trial. Cracked trials are regarded as having an adverse effect of the justice system because they are said to waste judicial resources and time. Through both collecting data from courtroom observations and interviews with defendants and legal practitioners, it was discovered that there were other factors that have a strong effect on defendants’ decisions to enter late guilty pleas. It was previously asserted by some that defendants enter late guilty pleas because of tactical advantage; in other words, they do so to play the system. The findings of this project do not lend credibility to this line of thought. Instead it was found that other reasons such as the adverse conditions of being held in pre-trial detention and the overall pressures of being caught up in the criminal justice process is more likely to lead defendants into cracking their trials. Moreover, there are ways where the adverse disruptions of late guilty pleas can be minimized.
Research Output
Peer-reviewed journal publication(s)
arising directly from this research project :
(* denotes the corresponding author)
Year of
Publication
Author(s) Title and Journal/Book Accessible from Institution Repository
2018 Kevin Kwok-yin Cheng*, Wing Hong Chui, Simon NM Young and Rebecca Ong  Why do criminal trials 'crack'? An empirical investigation of late guilty pleas in Hong Kong. Asian Journal of Comparative Law 13(1), 1-25.  No 
2018 Kevin Kwok-yin Cheng* and Becky Po-Yee Leung  Passing the threshold of one justice system to the next: Challenges of emerging young adults in Hong Kong’s adult criminal justice process. International Journal of Offender Therapy and Comparative Criminology 62(9), 2650–2668.  No 
2018 Kevin Kwok-yin Cheng*  Navigating through the effects of ‘cracked trials’: How Hong Kong legal practitioners deal with late guilty pleas. Common Law World Review 47(2), 136-149.  No 
Kevin Kwok-yin Cheng* and Becky Po-Yee Leung  The punitive nature of pre-trial detention: Perspectives of detainees in Hong Kong. The Howard Journal of Crime and Justice.  No 
Recognized international conference(s)
in which paper(s) related to this research
project was/were delivered :
Month/Year/City Title Conference Name
Tokyo The causes of "cracked trials" in Hong Kong  The 4th East Asian Law & Society Conference 
Hong Kong An empirical investigation of ‘cracked trials’ in Hong Kong’s magistrates’ courts  HKU-NUS-SMU Conference Feb 2016 
London Intrinsic pressure in the criminal justice process: An empirical investigation on late guilty pleas  Eleventh International Conference on Interdisciplinary Social Sciences 
Newcastle The punitive nature of pre-trial detention: Perspectives of detainees in Hong Kong  The Socio-Legal Studies Association Annual Conference 
Singapore Why do criminal trials 'crack'? An empirical investigation of late guilty pleas in Hong Kong  6th Annual International Conference on Law, Regulations and Public Policy 
Seoul Navigating through the effects of cracked trials: How Hong Kong legal practitioners deal with late guilty pleas  15th Asian Law Institute Conference 
Other impact
(e.g. award of patents or prizes,
collaboration with other research institutions,
technology transfer, etc.):

  SCREEN ID: SCRRM00542