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

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.