The Punitive Nature of Pre‐Trial Detention: Perspectives of Detainees in Hong Kong
| DOI | http://doi.org/10.1111/hojo.12293 |
| Published date | 01 June 2019 |
| Date | 01 June 2019 |
The Howard Journal Vol58 No 2. June 2019 DOI: 10.1111/hojo.12293
ISSN 2059-1098, pp. 143–160
The Punitive Nature of Pre-Trial
Detention: Perspectives of Detainees
in Hong Kong
KEVIN KWOK-YIN CHENG and BECKY PO-YEE LEUNG
Kevin Kwok-yin Cheng is Associate Professor, and Becky Po-yee Leung is PhD
Candidate, Faculty of Law, The Chinese University of Hong Kong
Abstract: Pre-trial detention plays an important, and often contentious, role in the
criminal justice process. Legal theorists have gone to great lengths to distinguish between
preventive detention and punishment with respectto pre-trial detention, as it would violate
the principle of retribution and the presumption of innocence if yet-to-be convicted defen-
dants were subjected to punishment. Nonetheless, the experiences of detainees remains an
understudied area. The purpose of this article is not to dispute whether pre-trial detention
is, or can be justified as, a form of punishment, but it is to show that pre-trial detention,
at least in the minds of detained defendants, is punitive. Drawing on interviews with a
sample of previously-detained defendants in Hong Kong, it is found that they experience
censure (stigma) and hard treatment during their time in pre-trialdetention. Implications
and recommendations are discussed.
Keywords: defendants; pre-trial detention; preventive detention; punishment;
remand in custody
Pre-trial detention plays an integral role in the criminal justice process.
One of the key decisions that must be made in the criminal procedure
is whether or not to grant the defendant bail. Being remanded in cus-
tody has been found to have an adverse effect on subsequent stages of
the criminal justice process such as the increased likelihood of pleading
guilty (Cheng 2013; Euvrard and Leclerc 2017; Kellough and Wortley
2002), being convicted at trial (Koza and Doob 1975), and receiving length-
ier imprisonment sentences (Goldkamp 1980; Williams 2003). Previously-
detained defendants have also been found to have higher recidivism rates
(Lowenkamp, VanNostrand and Holsinger 2013). The use of pre-trial de-
tention is contentious because it strips defendants of their liberty before
they are formally convicted by a court of law. Legal theorists have gone
to great lengths to distinguish between preventive detention and punish-
ment. They contend that pre-trial detention cannot be regarded as a form
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2018 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol58 No 2. June 2019
ISSN 2059-1098, pp. 143–160
of punishment because it would violate the sentencing principle of retri-
bution and defendants’ due process rights, in particular the presumption
of innocence (Duff 2013; Raifeartaigh 1997; Robinson 2001).
The purpose of this article is not to dispute whether pre-trial detention
is, or can be justified as, a form of punishment. However, it is to show that
pre-trial detention, at least in the minds of detained defendants, is puni-
tive, and that many of them would prefer prison over being remanded in
custody. This is problematic because if defendants regard the process of
being remanded as punitive, then it renders the process the punishment
(Feeley 1979). It is important to investigate the views of detained defen-
dants because they offer an ‘insider’s view’ of the criminal justice process
and provide a unique perspective as they experience first-hand what it is
like to be in pre-trial detention (Weinrath 2009, p.363). Through in-depth
interviews, we are able to ask not just about whether pre-trial detention is
punitive but about the reasons that make it so.
Prevention versus Punishment
While there is no universal definition of what preventive detention is, it is
typically understood as state-sanctioned detention with the aim of prevent-
ing future harm or from a potential threat (Elias 2009; Husak 2011). This
includes measures of extended prison sentences for convicted offenders
based on assessment of dangerousness and pre-conviction measures such
as the detention of terrorist suspects, immigration control, quarantine for
public health reasons, and pre-trial detention (Ashworth and Zedner 2014).
The rationale for pre-trial detention is typically understood as a measure to
ensure the defendant’s appearance in court but it also includes the notion
of protecting the public from dangerous offenders (Goldkamp 1985).
On the other hand, punishment is understood as the state’s response
to crime. The theories of punishment can be broadly categorised into
utilitarianism and retributivism. Utilitarianism maintains that punishment
could be justified based on utility maximisation and cost reduction. Harm
incurred to the offender and the administrative costs of the punishment
are weighed against the crime preventive benefits that the punishment
may yield (Bentham 1970; Braithwaite and Pettit 1990). The wrongdoer
could potentially receive a disproportionately stringent penalty for a less
serious offence when the aggregate benefits are deemed more beneficial
overtheharminflicted.
Retributivism, on the other hand, departs from a purely consequentialist
account of punishment as it asserts that punishment should be proportion-
ate to the seriousness of the crime. There are different retributive theories
that emerged from the second half of the 20th Century. But among them,
expressive theories of punishment have been one of the most prevailing
accounts of punishment. Contemporary expressive theories of punishment
comprise two connected elements: censure and hard treatment against the
wrongdoer (Easton and Piper 2012; Von Hirsch 1993).
Expressive theories of punishment venture that punishment is com-
municative and the major aim of punishment is to convey censure
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2018 The Howard League and John Wiley & Sons Ltd
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