Following my previous blogpost, I have made a chat agent on PromptBros to illustrate the input of advocates in crafting a plea in mitigation.
As a student, I was sometimes quite puzzled about the value the advocate adds when conducting a plea in mitigation. In some cases, the value is clear: where there is sentencing guidelines from the legislation or the Court of Appeal, or when a case is an excepted offence for which suspended sentence is available.
But for many crimes, the strict law does not take much time to look up. A quick look at the relevant entry at “Sentencing in Hong Kong” gives the basic range, supplemented by a quick online search. For comparatively minor offences, there would often be no published cases, and the most the defence can do is to ask the Prosecution for their records of previous fines/sentences.
But later, I began to understand the value added. It comes from a sensible framing of the facts: how to showcase the best factors in mitigation, how to respond to any judicial queries. One should as a rule never specify a minimum sentence (because the Judge may be intending to go even lower than that); but on the other hand, one has to realistic in order to have the Court’s ear.
In some sense, the value added by advocate is impossible to articulate. There are no experiments we can conduct: we do not know how the judge would have sentenced if the plea was done differently. But in light of the importance of the occasion to many clients, it makes sense for the plea to be made by an experienced advocate.
The chat agent is not intended to replace or even significantly assist advocates (except perhaps someone on the very junior end). Instead, it is intended to remind us of the importance of rhetoric and how one can sway a tribunal with reasoned argument, without any deceit or other underhand tactics.