“Does Punishment Work?” an Interview with Judge Albert Sanguinetti … by Margaret Chen
Our conversation with Mr. Albert Sanguinetti, formerly a Hong Kong District Magistrate, whom in his judicial career was the champion and defender of two main "underdog" constituencies, that of street hawkers and teachers.
MC: Margaret Chen
AS: Mr. Albert Sanguinetti
AS: Does punishment work? There has been a lot of dispute about this. There are three reasons for punishment as you know: one is deterrence, the other is reformative, and the other one is retribution. Now punishment in my opinion, as I did some cases on personal punishment, punishment can deter, there is no shadow of a doubt, but it can also create criminals. In the '60s, I had a case where a 22 years old man was brought before the magistrate. At this young age he has been convicted 20 times, and in prison, as part of his sentence, he had received 126 strokes of the cane.
MC: Is this in Hong Kong?
AS: Yes, In Hong Kong.
MC: I didn’t know they caned people in Hong Kong.
AS: I was absolutely stunned when I first came here in 1958. They were given strokes. I’ll read you this and I’ll give you a copy. His record dates back to 1948 when he was a boy of 9 and in the following years he had been given all together 126 strokes of the cane over that period of time.
MC: By whom was this administered?
AS: By the magistrate and the police in those days. You don’t know what happened in Hong Kong?
MC: No.
AS: Strokes of the cane, simply for begging.
MC: Oh my God!
AS: And I said, quoting myself here “and 12 strokes of the cane also for being destitute – for not having parents to look after you.” Can you believe that?
MC: That’s really unbelievable.
AS: And then I put him on probation and gave him $20 out of the poor box and then I said to the probation officer “Society would be able to obtain employment for the youth.” But then he came back four years later before another magistrate for stealing and he was convicted for smoking heroin and for stealing from cars. The damage had been done. So I said that punishment not only deters, but when improperly administered, can also create criminals if the punishment is not relative to the offense committed. Or even here in this case, it was not an offense to be destitute. Can begging be considered an offense?
MC: Your real story of this young man mirrors the story in Victor Hugo’s novel "Les Miserables."
AS: Corporal punishment was administered so it can deter. It says here, “The greatest incitement to crime is the hope of escaping punishment,” and that was Cicero, in the year 50 B.C. Seneca also said, “Laws do not persuade just because they threaten.”
MC: So are you saying that punishment doesn’t work?
AS: You have two kinds of punishment – one greater and one lower and you always go for the lower, otherwise you can destroy life, and many lives have been destroyed in Hong Kong in my experience, for imposing corporal punishment not in relation to the gravity of the offense. And even in cases where people were not committing any “crime” at all, by begging or by being destitute!
AS: “The reformative effect of punishment is a belief that dies hard simply I think because punishment is so satisfying to our sadistic impulses,” –Bertrand Russell said in “Ideas that have Harmed Mankind.”—1946
AS: And here you have corporal punishment. I am referring to corporal punishment particularly. So, I quote again, “Corporal punishment is as humiliating for him who gives it as for him who receives it. It is ineffective besides.”
MC: Corporal punishment referring to spanking, beating, caning?
AS: Yes exactly. And parents now are prohibited from corporal punishment. Beating children now is not allowed, and in schools you are not allowed to beat children also. Nowadays we have progressed because this is the effect of punishment. And in Singapore now I think it’s done and also in Brunei, unless they have done away with it. Americans are all out for corporal punishment and torture. Then look at the history and something like the Spanish Inquisition. Back then people believed that they were saving the person’s life, well, “soul” rather, not life. They tortured them tremendously.
MC: If not punishment then what do you do?
AS: You must have a fair medium – the law of reasonableness, not go to extremes one way or the other. Strike a balance as much as possible using rational thought. And don’t be controlled by emotions. That’s what I endeavor to do in my career as a magistrate and when I sat in the district court, just the same. I tried to mitigate when there are two ways of dealing with a person. In two ways you choose the lesser one to achieve its aim. I know it’s very difficult but you must try it.
MC: When you say that there are two ways to deal with a person who has committed an offence, what are they?
AS: You have two ways – deterrence and reformative. And you have another one –retributive. An eye for an eye and a tooth for a tooth.
MC: Do you believe in an eye for an eye and a tooth for a tooth?
AS: No because you descend to the same level as a criminal. Exactly the same as if you take life.
MC: But what if a victim is raped or beaten to death?
AS: Of course you must impose punishment but the circumstances of the man’s upbringing must be taken into consideration. What made him do this? Maybe he’s a psychopath. Is he evil? That’s the whole aspect of the thing. But corporal punishment was abolished and I take pride in this. In this case when I left the bench that criminal law, presidia, sentence, corporal punishment, departure from the sentence policy need for prior consultation. After this case there was no further cases of corporal punishment in Hong Kong.
MC: So what was this case about?
AS: It was a case of robbery. He has here robbery, sentence, corporal punishment, departure from sentencing policy. Chief Justice Briggs…18 March 1970.
MC: So this Au Young Ming robbed someone?
AS: That was….that was years after I took the case criminal law…sentence or probation and training center reports need to give copies to the…this is an appeal against sentence. The appellant had pleaded guilty to one charge of robbery with violence and four charges of robbery. He was sentenced to three years imprisonment and to four strokes of the cane on the first charge and concurrently to run with two years imprisonment on the other. Then the court held this sentence of caning was a departure from usual practice and policy in Hong Kong. After this time it was being done in as late as 1970. It is essential that in the offender council should be given. It should be prior consultation but after that it was abolished
MC: Caning was abolished?
AS: And then it was abolished eventually but never this. So I got the full court of the time which is now the Court of Appeal, it was the second court of jurisdiction apart from the Privy Council in England, to set the sentence aside, and so far as I know there has been no more caning.
MC: But what was the reason? What was the argument?
AS: The argument was that I said that it was illegal but the court couldn’t have that, and they said it was a departure from the usual practice and policy of the courts. That was sufficient not to allow it anymore. They had to consult the judges within the judiciary and so in the fact if not in theory. After this case corporal punishment stayed in the study book but it was abolished completely in Hong Kong.
MC: So what was your reason for abolishing it?
AS: It’s degrading and I have told you, it is humiliating for him that imposes it and exactly the same as the one who receives it. And secondly because apart from humiliating, it’s at times ineffectual. And you descend to the same level of behavior…kill him, and then they kill me, where will it end?
MC: But the State is killing the person or the criminal. So if a man kills somebody’s entire family or something …
AS: But they could be a psychopath.
MC: But then why leave them living?
AS: You don’t kill someone just like that because then you descend to the same level.
MC: But they can’t be fixed and let back out of prison if the likelihood is that they will do the same again ~ if indeed the person who commits heinous crimes is in fact “evil”.
AS: Well you keep them in prison, maybe after a certain amount of years they are let out. In Hong Kong you can’t serve more than 30 or 40 years.
MC: But what’s the point of that is the person’s life is ruined anyway. 30 or 40 years in jail?
AS: I’m not going into that, you understand? I’m rather practical. But I dealt with the question of punishment in the sense of corporal punishment and the death sentence.
MC: So deterrents, do you think it deters some people?
AS: In 1894, the Lord Chief Justice of England said this about capital punishment: he said, addressing the jury - and in this trial there was no electricity and so a candle was burning, when a gust of wind blew out the candle and the candle went out in the courtroom, “Gentleman of the jury you have a solemn duty to this charge. The life of the prisoner is in your hands. You can take it by a word. You can extinguish that life as the candle by your side was extinguished just a moment ago, but it is not in your power or in the power of any of us or anyone in the court or out of it, to restore that life. When once taken as that light has been extinguished.” And of course the death sentence is something which is absolutely final … how many people have been sentenced to death and have later been found not guilty?!
AS: I wasn’t sitting at the bench at that time I was sitting at the Bar and there was panic in Hong Kong during the Cultural Revolution. Have you heard about the Cultural Revolution?
MC: Yes
AS: It affected Hong Kong and during those days of the Cultural Revolution in Hong Kong, they were trying to introduce the death sentence for the possession of arms. If you were found in your house armed you could be killed or “extinguished”. And I was against the death sentence because once it’s carried out there’s no hope for you, you can’t restore that life. That’s the danger. In other forms of punishment you can have a compensation, apologies, restitution and things like that. If you’re wrongly convicted of robbery or rape, you can be let out, but in the death sentence as a form of punishment, that’s the end, as Coleridge said. So during the Cultural Revolution, this Hong Kong man and his two sons were brought to court and there was no death sentence at the time because they never went so far. I said it was panicked legislation in a panicked situation. It’s the worst time to rush things. And they were sentenced to five or six year’s imprisonment.
MC: Because they found arms at home?
AS: Yes, so it was alleged. After the whole thing was settled after one or two years, or nine months, they found out that it wasn’t these people who had arms, but rather their neighbors!
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DOES EVIL EXIST?
AS: And now I come to the question of evil. This is metaphysical – what is evil? Is the evil confined to action or conduct of persons or is evil more like SARS or the epidemics or the flu? Those are evils. How do you define evil in the first place?
MC: How about evil intention?
AS: Well you are confining evil to human beings. Because animals can also be evil, vicious to attack you possibly in self defense. Evil is not confined to human beings. There are evils such as hurricanes or earthquakes or even food shortages. You have to expand what you mean by evil. Have a definition.
MC: No but I want you to define it because it’s in the application of laws to control human behavior.
AS: Then you have to say, “in application of law”.
MC: But is it “evil” or just conditioned behavior like you said?
AS: Sometimes it’s conditional behavior and sometimes it’s as the boy here that I gave you with the wrong punishment, wrong attitude, wrong method of dealing with him. Sometimes because he’s a mental case and you’re not going to punish him. It’s a punishment because you’re keeping him in prison for the queen’s pleasure. Sometimes it’s a sadistic thing but evil has been defined by three things – from lust, anger, and from greed.
MC: So for example, do you think that capital punishment is a form of evil?
AS: Well you descend to the same level as the alleged criminals. There’s always the danger you can convict the wrong man, and then execute the wrong man. And you can’t put the record straight. Last week New Jersey just abolished the death penalty in the State.
MC: And why?
AS: Well because it’s all these considerations that I have been telling you about. There’s the question of mistake. China has the death sentence. I know that some people are evil but the trouble is that you cannot actually put it straight. If you make a mistake, you’ve had it.
MC: So if you say some people are evil is it something ....
AS: What did Einstein say about evil? I don’t remember.
MC: It says that he was in the classroom and the teacher asked“Does evil exist,” so if it exists then how can a good God allow Evil to exist?
AS: Well, we are going into theology now.
MC: But Einstein then says “does light exist?” And so yes, light exists but you can’t blame light for darkness. Darkness itself doesn’t exist, so it’s only when there is the absence of light.
AS: He was dealing with his theory of relativity. But the general theory of relativity is that you cannot have…it’s a human definition of evil. Different societies have different kinds of evil. There’s no absolute standard, it’s all relative. I think the old sound and honest maxim that “You shall not do evil that good may come is applicable in law as well as in morals”.
MC: But this is what Einstein says; basically that if you let light go away and you let goodness go away, then evil exists.
AS: Evil exists, yes. The word evil by itself is not evil because you have to bear in mind that it’s only the rational human being that can actually define what is evil. And different societies have different standards of evil. Look at Hitler, what he did with the Jews, with the Holocaust – that was evil. It is evil no matter what the motive. The suffering and the millions of Jews that were killed. That was evil.
MC: Just for the purpose of definition, can you explain the difference is between a judge and a magistrate?
AS: The magistrate has a lawyer’s diction and a… and the magistrate has to deal with the ordinary daily life and law offences although the powers are three.
MC: Does it also have a jury?
AS: No jury.
MC: It’s just that there case is presented before they make a decision.
AS: A district court has a jury. It’s one person. I advocated for some offenses to be tried by jury.
MC: But your career started as a lawyer?
AS: Forget about me. I was the assistant attorney general in Gibraltar. The same problems arose.
MC: You retired from the bench in Hong Kong, in November 1964?
AS: They retired me. They wanted to take the disciplinary action against me because I was making a statement from the bench that I was not going to be dictated in my judicial duties by the chief justice or by anyone else. So I created so much fuss so I said I’ve been having a directive.
AS: Sometimes it may…as I told you before when dealing with punishment that the greatest incitement is that they hope that they could get away and not get punished, but when you have a man like these boys who are not the only ones who didn’t have a father and mother and he was caned….exactly the same as the triads.
MC: See, premeditated intention is the difference
AS: No because the parents have broken homes and society is the last front to lend at times. Father and mother who don’t have an education and they don’t look after their children and the parents are separated; the father goes one way, the mother goes the other, and these children are there. Are you going to deal with him the same as with an educated man? … You see justice has but one form; evil has many. Of two evils we should always chose the lesser one. Punishment is an evil.
MC: So you think you should choose a lighter punishment?
AS: Well of course, if you can achieve the purpose. A judge who doesn’t ponder carefully each and every sentence, is as much a criminal as the man who appears before him. I remember one Christmas when a woman came in for selling dangerous drugs. That night, Christmas Eve many years ago, I had to send her to prison for selling drugs. A lot of people here are lured by the triads, especially young boys, not educated, and with lots of bravado.
MC: What happened with this old lady that went to prison on Christmas Eve?
AS: Well she went to prison and served her sentence. I tried to curtail it but I don’t know what happened.
MC: Was she part of a triad?
AS: I don’t know, but it’s likely that she was used. So, the thing that’s apparent is that justice is not simple, so it’s not realistic for people to expect simple solutions like "an eye for an eye" to work! That’s something that I do want to say.
*iCUBED.us wishes to express our most sincere gratitude to Mr. Albert Sanguinetti for his candid comments on and around the topic of our theme this month - CRIME AND PUNISHMENT - and around our two main questions: Does punishment work? and, Does evil exist?
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