The Penal Code of Macao is a law following the criminal jurisprudence theories of Portugal. During the Portuguese rule of Macao over the past more than 400 years, the Penal Code of Portugal was extended to Macao for its application in the region. It was in later periods that some separate criminal laws enacted by the Legislative Assembly of Macao were added to the Portuguese criminal law for application in the region.

Along with the entry into force of the Penal Code of Macao on January 1, 1996, such a situation obviously changed.

Although the 1996 Penal Code of Macao was adopted by the Legislative Assembly of Macao, its contents, legislative intent, the orientation of its criminal policy and its fundamental principles have been deeply influenced by the criminal law of the European continent. Particularly, many of the ideas advocated in the movement of criminal law reforms started in the 1950s and 1960s have been embodied in the Penal Code of Macao.

Besides, in consideration of the severity of means adopted by the criminal law, such as the deprivation of the personal freedom and other rights of convicts, the intervention of the criminal law in areas that require its intervention should be appropriate to its purposes to prevent crime and protect legal rights and interests, and the intervention of the criminal law should not be excessive under any circumstances.

The principle of No Crime without a Law, No Penalty without a Law is one of the fundamental principles of the criminal law in most of the countries and regions around the world, and also a principle universally recognized by countries ruled by law.

Primarily, according to the principle of No Crime without a Law, No Penalty without a Law, only law can define crimes and their corresponding legal consequences. No acts can be viewed as criminal acts and as pretexts for applying penalties unless they are defined by legislative authorities with law enacted through legislative procedures.

Likewise, the illegal acts and their corresponding legal consequences as pretexts for applying security measures must also be defined by law specifically.

The criminal law must specifically and elaborately list the constitutive elements of all crimes and criminal delicts. It will be inappropriate for the criminal law to use terms that are not specific or that may lead to misunderstanding. Because of the reason that the criminal law must be specific in defining crimes and criminal delicts, the criminal law is prohibited from using terms of analogy in incrimination. If there occurs a loophole in law, it should be blocked with means of legislation rather than analogy.

After defining the crimes and criminal delicts, the law should also specifically define penalties and security measures – the corresponding legal consequences of crimes and criminal delicts.

Generally speaking, the determination of penalties and security measures is in different stages. Firstly, legislators, in consideration of the seriousness of crimes and the necessity to prevent crimes, determine the types of corresponding penalties and security measures for crimes, such as imprisonment, sentence to pay fines, internment and prohibition from conducting certain professional activities. After determining the types of corresponding penalties and security measures for crimes and criminal delicts, legislators must determine the maximum and minimum limits on penalties or security measures in accordance with the most serious and slightest forms of execution of crimes and criminal delicts as well as their danger of damage or damage imaginable.

Afterwards, in face of a concrete case, law enforcement authorities, in accordance with the physical circumstance and in consideration of the form of execution of the specific crime or criminal delict in the case as well as its damage or extent of damage, will choose the type of penalty or security measure for the crime or criminal delict, and determine the penalty or security measure for it within legal limits. According to the principle of No Crime without a Law, No Penalty without a Law, the determination of penalties or security measures for crimes or criminal delicts during this stage is carried out by judges in accordance with the criminal law.

In other words, the pretexts for penalties for crimes and security measures for criminal delicts and the legal consequences of crimes and criminal delicts must firstly be defined by law before the penalties and security measures are applied by judicial authorities.

According to the principle of No Crime without a Law, No Penalty without a Law, a criminal law can not retrogressively define the acts executed before its entry into force as crimes, and thus can not prescribe legal consequences for them which are more severe than those prescribed by the criminal law in force at the time of their execution.

However, the principle of No Crime without a Law, No Penalty without a Law does not mean the total prohibition of the criminal law from affecting acts executed before its entry into force. For example, according to the Penal Code of Macao, where judicial authorities establish legal consequences for acts executed before its entry into force that are less severe than those prescribed by the old criminal law in force at the time of their execution, the new law will apply. Under such a condition, the new law even tends to remove such acts from the list of crimes. This has actually embodied a principle of benefiting defendants.

Although the capital punishment and life imprisonment, the two penalties meant to perpetually deprive convicts of their personal freedom or even their life, have always been controversial issues in the criminal law and criminal policies of many countries, Macao has maintained a tradition of not applying the capital punishment and life imprisonment over the past more than one century, in the enforcement of either the 1886 Penal Code of Portugal or the ensuing 1996 Penal Code of Macao. Because of this historical tradition, Portuguese legal scholars and professionals, who had monopolized the law and judicial circles of Macao, have reached a fundamental consensus on the orientation of the policy of not applying the capital punishment and life imprisonment.

Before the resumption of the exercise of sovereignty over Macao by the People's Republic of China on December 20, 1999, the Organic Statute of Macao, which was the constitutional diploma in force in Macao, was allowed to quote the provisions on fundamental rights in the Constitution of Portugal. Therefore, the constitutional diploma in force before Macao’s return to China also prescribed that the capital punishment and life imprisonment were not applicable in Macao.

The penalties prescribed by the criminal law of Macao are intended to prevent crime and protect legal rights and interests. The criminal law of Macao does not advocate the idea to make retribution to the wrongdoers for the harms they have done. Rather, it is designed to attain the target that the wrongdoers will not commit crimes again after receiving punishment, will start with a clean slate and will remerge into the society as new men.

The principal penalties include imprisonment for deprivation of freedom and sentence to pay fines. Under specific circumstances, judges may suspend the execution of imprisonment or substitute the sentence to pay fines for imprisonment when they hold that the suspension or substitution meets the requirement of preventing crime.

According to Article 47 of the Penal Code of Macao, in sentencing convicts to pay a fine, the judges concerned should at the same time rule that the convicts will still have to serve prison terms when they fail to pay the fine, except those who can make a reasonable explanation or can prove their incapability to pay the fine. For the latter, they can apply to the judges concerned for substituting labor service for the fine, and issues concerning the type of labor service and the time and location for paying the labor service will be decided by the judges concerned.

Under the criminal law of Macao, prison terms are set by the day, month and year. The shortest prison term will be one month while the longest one will generally be 25 years. Under special circumstances, such as the application of concurrent punishment for several crimes, it may reach up to 30 years in the maximum.

In Macao, the sentence to pay fines is applied through two different procedures and according to different rates.

As the sentence to pay fines means the payment of money, the fine of a certain amount of money will be differently severe to convicts with different economic capabilities. A fine may mean nothing or little to rich convicts, but can mean a severe punishment for convicts with poor economic capabilities. Therefore, the application of a sentence to pay a fine may result in a relatively unjust consequence.

In order to avoid the possible occurrence of such a relatively unjust consequence, the legislators concerned, by drawing on the experience of three Nordic countries in the Scandinavian Peninsula, have established the system of fines by the day.

So, fines as a penalty for crimes are paid by the day in Macao. In imposing a fine on a convict, the judge concerned will, within the limit of penalty prescribed by law, determine the number of days as the unit of time for the fine in accordance with the extent of illegality and the extent of fault on the part of the convict. Then, the judge will, in accordance with the economic capabilities of the convict, determine the appropriate value of the fine for each day ranging between 50 Macao patacas and 10,000 Macao patacas. The actual amount of fine payable by the convict will be the result of the value of the fine for each day times the number of days for the fine.

As far as the accessory penalties are concerned, the legislators concerned, in consideration of the characters of crime and the necessity to prevent crime, have approved the application of accessory penalties in addition to principal penalties under special circumstances. For example, convicts can be barred from taking certain jobs or undertaking certain activities during a given period of time. One point that should be emphasized here is that an accessory penalty will be neither the necessary result of a conviction nor an appendage to a principal penalty under any circumstances. Rather, accessory penalties are punishments that must be individually applied by judges in concrete cases within the limit prescribed by law.

The criminal law of Macao does not prescribe fixed penalties, either the principal or accessory penalties. Namely, under the criminal law of Macao, the penalty for a crime means a certain quantity of punishment. Legal scholars hold the view that as circumstances of a crime and extents of fault on the part of convicts may not be identical, it will be incorrect to apply a fixed penalty against all convicts who have committed a same crime.

The prevention of crime consists of general prevention and special prevention.

General prevention of crime is intended for the general public. Whenever a crime is committed in the society, the social tranquility and the confidence of the general public in law will be affected. However, after judicial authorities appropriately apply penalties against the offenders through the legal procedure in accordance with law, the social tranquility and the confidence of the general public in law affected will be restored. This will enable the general public to become more confident in the efficacy of law and the capacity of law to respond to crime appropriately, and will enable members of the general public to enhance their awareness to abide by law instead of challenging law without due consideration. As a result, the target of preventing future crime can be attained.

Special prevention of crime is aimed at criminal offenders. In applying penalties against convicts, we should not only consider the requirement of general prevention, but should also take account the necessity to provide convicts with the necessary condition and chance to start with a clean slate after serving prison terms, in order that they can become citizens meeting the requirement of the society. If we can provide convicts with the necessary condition and chance to remerge into the society after correction, we can attain the target of preventing these people from committing further crimes.

According to the current criminal law of Macao, where a person under the age of 16 has practiced an act integrating the constitutive elements of a crime, his or her act will be legally presumed as crimeless but will be considered as a criminal delict. Although criminal penalties can be not applied against such a person for his or her "crimeless" act, security measures can be applied instead. The procedure and legal basis for applying security measures against offenders who can not be incriminated because of their age were defined in the legal instrument of the Statute of Juridical Assistance for Minors in Overseas Territories, which was enacted by Portugal in 1971 and extended to overseas colonies for local implementation. This statute prescribed some legal consequences that could be applied by courts for minors, such as verbal admonition, provisional internment for observation, attended liberty and internment. Although these measures can be theoretically defined as security measures, their legislative intent was meant to protect to some extent the offenders who are minors.

Once the offenders concerned reach the age of 18, the measures defined as security measures will automatically become no longer applicable to them.

On the other hand, according to Article 19 of the Penal Code of Macao, where offenders are judged as lacking the abilities to recongize the illegality of their actions at the time of executing the actions, or to make a decision in accordance with the recognition of their actions because of reasons of psychological abnormality, they can all be viewed as persons who can not be incriminated.

Although such offenders lack the subjective abilities to recognize their own actions, they will pose a danger or cause damage to legal rights and interests protected by the criminal law if their actions integrate any of the constitutive elements of a crime. Therefore, it is necessary to take preventive measures against potential dangers posed to legal rights and interests by persons who can not be incriminated. And, such preventive measures are normally taken through the application of security measures.

For offenders viewed as those who can not be incriminated because of reasons of psychological abnormality, the Penal Code of Macao provides for the internment of them meant to deprive them of their personal freedom and prohibition of them from professional activities not meant to deprive them of their personal freedom (the prohibition of them from taking certain jobs or conducting professional activities during a given period of time).

Like the application of penalties, the application of security measures should also be in compliance with the following principles:

• The Principle of Legality of Security Measures
• The Principle of Criminal Delicts: The pretext for applying security measures is that offenders who can not be incriminated have practiced an action integrating any of the constitutive elements of a crime. Although such offenders are subjectively crimeless, they must have objectively committed a criminal delict through the action practiced.
• The Principle of Danger: Security measures can be applied only when judges hold that the offenders concerned who can not be incriminated have appeared to pose a possible danger to legal rights and interests through the practice of a criminal delict.
• The Principle of Appropriateness: The severity of security measures applied must be appropriate to the prevention of the danger posed by the offenders concerned, and may not be excessive.
• The Principle of Judicial Procedure: The security measures must be applied by judges through the judicial procedure. In other words, administrative authorities only have the power to execute security measures rather than the authority to apply security measure.