Criminal Procedure

Lecture: Classification of Offences & Transfers and Committals

Jurisdiction of the Hong Kong courts based upon:

Factors determining venue:(a) Territorial limits(b)Procedural classification of offences(c)Original criminal jurisdiction of the

courts and their sentencing limits

Classification of OffencesThree classifications of offences:

Summary- minor offences triable in the summary jurisdiction i.e. the Magistrates’ Court (sometimes in the District Court) See Summary Offences Ordinance (Cap. 228).

Indictable-serious offences – the very serious can only be tried in the CFI by judge and jury

Indictable triable summarily- less serious indictable offences where option to try by summary trial – venue can be MC, DC or the CFI

Classification of OffencesHow do we know if an offence is indictable,

summary or an indictable offence triable summarily?

Words of charging Ordinance often declares its classification“indicable”“summary”

“....triable on indictment” ,“.....on summary conviction”

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How do we know what type of offence if no classification in the Ordinance?

Words usually identify the offence as summary or indictable

If no such words? Apply

s.14A(1) CPO presumption that all statutory offences are triable summarily (unless

otherwise provided)

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How do we know if an indictable offence refers to a purely indictable offence or an indictable offence triable summarily?

• Words? – there are no words that state ‘ indictable triable summarily’ in legislation – so how do we determine?

• Need to look at the provisions in the MO • s.91 – 94A MO regulate the summary

trial of indictable offences (and lead to a classification of ‘indictable offences triable summarily’) 6

Classification cont.PLEASE LOOK AT YOUR LEGISLATION

S.92 Magistrates OrdinanceWhenever any person is accused before a permanent

magistrate of any indictable offence EXCEPT AN OFFENCE specified in Part 1 of the Second Schedule, the

magistrate, instead of committing the accused for trial before the court, may deal with the case and convict the accused summarily, and on conviction may sentence the

accused to imprisonment for 2 years and to a fine of $100,000.

Provided that nothing in this section shall affect any greater of less punishment specifically provided for in any other

Ordinance7

Classification cont.

S.91 Magistrates OrdinanceA special magistrate can try any offence not

mentioned in the Second Schedule

Penalty limited to six months imprisonment and to a fine of HK$50,000

Classification cont.

Part III of the Second Schedule...limits indictable offences triable in the DC (note

exceptions for life imprisonment offences)...need to refer to s.88 MO

Classification cont.

Who decides if the case is tried summarily or upon indictment?

S.94A Magistrates OrdinanceConsent of the prosecution is required before

an indictable offence is dealt with summarily

What factors influence the decision?

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Can any summary offences ever be heard in the higher courts? S.88 CPO

Whenever any person is accused before a magistrate of any indictable offence not included in any of the categories specified in Part III of the

Second Schedule, the magistrate, upon application made by or on behalf of the Secretary for Justice – (a) shall make an order transferring

the charge or complaint in respect of the indictable offence to the District Court; and (b)may if the person is also accused of any offence triable summarily, make an order

transferring the charge or complaint in respect of the summary offence to the DC

Class ActivityRead the Second Schedule, MO and state

whether the following offences can or cannot be tried in the Magistrates Court

• S.9 Theft Ordinance…any person who commits theft shall be guilty of an offence and shall be liable upon indictment to imprisonment to 10 years.

• S.10 Theft Ordinance – Robbery…a person guilty of robbery, or of an assault with intent to rob, shall on conviction on indictment be liable to imprisonment for life.

Class Activity

• S. 12 TO - Aggravated burglary – any person who commits aggravated burglary shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life

• Murder – on a conviction for murder the sentence is mandatory: life imprisonment

• S. 60(1) & 60(3) Crimes Ordinance - Arson – the maximum sentence for aggravated arson is imprisonment for life

Class Activity

• S.5 Gambling Ordinance….anyone who operates a gambling establishment, or manages etc…… commits an offence and is liable (1) on summary conviction to a fine of S5 million and to imprisonment for two years (2) on conviction on indictment to a fine of $8 million and to imprisonment for 7 years.

Classify?A dual offence (see also s.4(1)(a) & (3) Dangerous

Drugs Ordinance, Cap123)

Overview of.........Jurisdiction of the Hong Kong Criminal

Courts and their Sentencing LimitationsMagistrates’ Court

District CourtJuvenile Court

High court acting as:- Court of First Instance

- Court of Appeal- Court of Final Appeal

Magistrates’ Court• Permanent and special magistrates... acts as

both judge and juryJurisdiction over summary and indictable

offences triable summarily under Part III, MOQuestion: What is the nature and extent of the

Magistrate’s jurisdiction over indictable offences?

Answer: ?

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Magistrates’ Court

• Maximum sentencing.... - permanent - 2 years and $100,000 but 3 years

in certain circumstances (s.57 MO)- Special – 6 months and fine of $50,000• Time limits...s.26 MO, six months for most

summary offences• Civil jurisdiction• Coroner’s Court

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District Court• District Court Ordinance, Cap 336 (DCO)• Professionally qualified Judges, no jury• Both criminal and civil jurisdiction• Indictable offences….not listed in Part III, Second

Schedule MO and consent of the prosecution• Summary offences…see s.88 MO only if

transferred with an indictable offence• Maximum sentencing…7 years imprisonment

(s.82 (2)(a) DCO). Note aggregate sentences must not exceed 7 years

• Fine – no maximum• Location – Wanchai Tower, Wanchai 18

Juvenile Court• Juvenile Offenders Ordinance, Cap.226 (JOO)• Juvenile Court presided over by a permanent

magistrate• Jurisdiction…s.3A(3) JOO over offences (other

than homicide) committed by a child (under age of 14) or young person (from age 14-16)

• Summary offences – exclusive jurisdiction• Indictable offences – concurrent jurisdiction with

CFI and DC• Procedure is less formal• Powers to punish parents/guardians e.g. fines

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High Court acting as the Court of First Instance

• A first instance trial function• Indictable offences and indictable offences triable

summarily• Trial by judge and jury (see Jury Ordinance, Cap 3)• Unlimited sentencing jurisdiction up to the

maximum provided by the Ordinance. Note some penalties ‘fixed by law’ e.g. murder

CFI acting as an appellate court• CFI judge can hear appeals from the Magistrates’

Court20

High Court acting as the Court of Appeal

• S.13(3) HCO – jurisdiction• Hears appeals from the CFI or DC under Part IV CPO• Appeals may be questions of law; s81(1) or fact or fact

and law – there are leave requirements unless matter of law

• Prisoner may appeal against conviction; s82(1), or sentence s83G or both

• SJ may appeal sentence; s81A(1)• SJ may want law clarified; s81D• SJ can appeal an acquittal on question of law; s84 DCOSee Appeals Lecture

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High Court acting as the Court of Final Appeal

• Established by the Hong Kong Court of Final Appeal Ordinance (Cap.484)

• Hears appeals from the High Court (Court of Appeal and Court of First Instance from decision on a Magistrates’ appeal)

• Leave to appeal is required and will only be granted if:- There is a point of law of great and general

importance involved or- Substantial and grave injustice has been done.See Appeals Lecture

Commencement of Proceedings

Bringing proceedings before the court by way of :

Information and Summons:- ‘Information’ = an allegation of a criminal

offence- The information is then put (‘laid’) before a

magistrate and a summons is issued- s.75 MO states what the information should

contain

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Commencement of Proceedings

Arrest and Charge• Used for nearly all indictable offences• A person is arrested and charged - a charge sheet

is completed• S.2 MO states that ‘information’ includes a

charge• The written charge against a person is in practice

described (interchangeably) as either an “information” or a “charge sheet”

• S.75 MO outlines the contents of the information (charge)

STATEMENT OF OFFENCERobbery, contrary to section 10 of the Theft Ordinance, Cap.210,

Laws of Hong Kong

PARTICULARS OF OFFENCEXX, you are charged that on the 2nd day of August, 2011

at the juncture of Star street and Sky Lane you robbed ZZ of $100 cash, a jade pendant and a gold

ring

Who can Commence Proceedings ?

- s.12 MO Secretary for Justice on behalf of the state

- Consents by SJ or Chief Executive- Government departments- Courts? No...see Sec. For Justice v Tse Sheung

Kai [2001] 3HKLRD 487 (on Judiciary web.)

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Who can Commence Proceedings...

• The right of an individual to institute a prosecution:

- s.14 MO individual can bring a private prosecution

- Private prosecutions at discretion of magistrate

- Individual needs to lay a complaint before a magistrate and obtain a summons

- S for J can at any stage of the prosecution before the magistrate intervene to take over the prosecution 27

Terminating Proceedings• Nolle Prosequi … withdrawal of proceedings pending

on indictment before judgment. The nolle prosequi is a formal entry in the record by which the S for J says that he “will no longer prosecute” as to some of the charges, some of the defendants or altogether. Does not bar the prosecution from initiating fresh proceeding. Must be authorized in writing by the S for J. IT IS RARELY USED.

• Offer No Evidence (ONE)… at commencement of a trial if respect of all charges ( or in respect of some) Defendant will be acquitted of all the charges and released. Cannot then be prosecuted on same facts at a later date.

• Withdrawal

Transfers and Committals

Moving between the courts-How?

Moving to Trial: Plea, Transfers and Committals

When a person appears in the Magistrates’ Court either after arrest and charge or in response to a summons what will happen next?

• A “plea” is asked to be taken in the Magistrates’ Court

• Request for transfer to the District Court• Request for a “return day” What does all this mean?

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If “Plea”is asked for then Summary Trial is indicated:

• All offences begin in the Magistrates’ Court – summary • Court No.1 is the plea court• Prosecution is asked if they want to proceed or they

ask for the charge(s) to be put to the defendant• This is the “consent” required for indictable offences

to be tried summarily• The “consent” to proceed in the Magistrates’ Court

confirms it as the appropriate venue • Charge or summons is read to the defendant• Defendant pleads guilty (PG) or not guilty (PNG)

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Request for Transfer to the District Court• Request indicates - District Court is the

appropriate venue• S.88(1) MO - Magistrates “shall” transfer • Request orally or in writing (s.88(2))• No refusal or objection by defence• Prosecution hands “transfer papers”, “transfer

order” and a copy of the charge sheet - a formal transfer order is made

• Magistrate - gives an alibi warning, advises as to legal aid and remands or bails the defendant to appear in the DC –s.90 MO

• See Practice Direction 9.4 Procedure on transfer32

Transferring from the District Court to the CFI • How? S.77A DCO• Why? • Effect?

Transfer from the CFI to the DC• How? S.65F CPO• When?• Why?

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Request for a Return Day: Committal Proceedings

This indicates that the prosecution have decided that the CFI is the appropriate venue for the offences

The proceedings to commit the case to the CFI in the Magistrates Court are termed committal proceedings.

The offences that are tried in the CFI include those offences found in Part III, Second Schedule of the MO

and ones in respect of which the prosecution have decided that the Court of First Instance is the

appropriate venue

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Request for a Return Day: Committal proceedings

Procedure when there has been a request for a return day :• S.80A MO, appointment of the return day which is not

less than 10 days nor more than 42 days ahead (s. 80A).• S.80A(4) MO Magistrate informs the accused of the

procedure and gives certain information re legal aid, right to prosecution papers, right on the return day to elect a preliminary inquiry etc. SEE LECTURE NOTES FOR FULL EXPLANATION

• S.80B – not less than 7 days before the return day - serving of the prosecution documents

• Read your LN re documents served on the accused

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The Return Day: Committal proceedings

Procedure: S. 80C• Prosecutor hands committal papers to the court and

the magistrate informs the accused that his committal is being sought and unless he elects to have a preliminary enquiry he will be committed without inquiry

• the election is put to the accused – the accused has the following options:

- elect a preliminary inquiry [VERY RARE ]- elects not to have a preliminary inquiry and agree to

be directly committed to CFI (paper committal)

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The Paper Committal (where accused elects not to have a preliminary inquiry )

Procedure: the magistrate informs • right to plead guilty and if does so will be committed

for sentence to the CFI• if does not plead guilty will be committed for trial at

the CFI• inform of right to apply to a judge for discharge on

the grounds of there being no prima facie case under s.16 CPO

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The Paper Committal (where accused elects not to have a preliminary inquiry)

Magistrate further• considers bail -if detains in custody, inform accused of his

right to apply to a judge for bail; • informs of right to apply for legal aid; • gives an alibi warning - if the particulars of the alibi are not

given to the court or to the prosecutor not less than 10 days prior to the commencement of the trial accused may not be permitted to give alibi.

What in your opinion is the purpose of such a warning? Why must the accused give notice to the prosecution? Does

this violate the right of an accused to remain silent?

Discharge under s.16 CPO• If the accused was committed for trial under the

provisions of s. 80C(4) (paper committal), by s. 16 CPO he/she has the right to apply to a judge for discharge. [NO RIGHT TO USE S.16 CPO WHEN THERE HAS BEEN A COMMITTAL AFTER A PRELIMINARY INQUIRY]

THE GROUNDS the evidence disclosed by the documents handed to the

court under s. 80C(1)as read with any further evidence which the SJ has notified the accused she will seek to have admitted at

the trialis insufficient to establish a prima facie case

• If the accused is discharged under this section, such a discharge operates as an ACQUITTAL.

Election of a preliminary enquiry

Procedure if elects preliminary inquiry:- accused is informed that unless he notifies the

magistrate and prosecutor not less than 7 days before the inquiry that he requires a witness to give evidence, such witness will not be called but the written statement will be received in evidence.

- The magistrate then ascertains if the accused wishes to name any witness as being required to attend and whether he wishes to call any witnesses of his own.

- Thereafter the inquiry is conducted according to ss. 81, 81A, 82, 83, 84 and 85.PLEASE READ YOUR LECTURE NOTES

The Preliminary InquiryProcedure

PLEASE READ YOUR LECTURE NOTES FOR THE FULL PROCEDURE …it is conducted according to ss. 81, 81A, 82, 83, 84 and 85

• Prosecution calls witnesses – a deposition is taken – read over and signed

• Close of prosecution case and subject to a submission of no case to answer the charge is put again, right to put his/her case is explained and asked whether wishes to plead guilty at this stage....

• ....the defence case and evidence is heard (if defendant has elected to do so) - depositions taken read over and signed if defendant or his/her witnesses have given evidence

• Magistrate makes a decision.....41

The Preliminary Inquiry

Decision if the magistrate is of the opinion that there is

insufficient evidence to put the accused on trial for any indictable offence, the magistrate will discharge

s.85 (2) This discharge will not be a bar to any subsequent proceedings that may be taken in regard

to the same facts (s. 85). If, in the opinion of the magistrate there is sufficient evidence to put the accused on trial for an indictable

offence he will order the accused to stand trial in the CFI (s. 85(1)).

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Voluntary Bill of Indictment• No requirement to go through committal

procedure first• S for J indicts with the leave of the High Court

directly• S.24A(1)(b) CPO procedure used – ex parte

application to a High Court judge in chambersExamples- Where some defendants have already been

committed

- Where accused committed for sentence and then changes plea 43

Voluntary Bill of Indictment cont.

PROCEDURE… is by of ex parte application to a High Court judge in chambers

-On successful application S for J applies for a certificate from the High Court-Certificate produced to the Magistrate who may issue a warrant or if in custody ask the Commissioner of Correctional Services to produce the accused-On the hearing day if the Magistrate is satisfied by evidence on oath that the person before him is the person named on the certificate the Magistrate MUST commit forthwith without any further inquiry.

Paper committal for Vulnerable Witnesses

S.79F CPO where a child is the victim of an offence (s.79F(1) CPO sexual

abuse, cruelty, injury or threat of injury and offence triable on indictment or indictable offence triable summarily)

and where a mentally incapacitated person is the victim of an

offence (s.79F(2) CPO)And

the DPP is of the opinion that the evidence would be sufficient for the person charged to be committed

And...

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S.79F CPO

AndThat it is necessary for avoiding any prejudice to the

welfare of the victim that the case should be taken over and proceeded with without delay by the CFI

the DPP can issue a“Notice of Transfer” supported by an affidavit setting

out the reasons

NOTE: Defendant can apply to a Judge of CFI for a discharge under s.16 CPO

Alternatives to Committal• S.3 Complex Commercial Crimes Ordinance (Cap.394)- For cases of complex fraud or dishonesty in a

commercial context - S for J, if of opinion that there is sufficient evidence to

commit, can apply to the Magistrate to transfer to the CFI

- No requirement to serve documents prior to transfer but within 7 days of transfer must serve the defendant with a summary of the evidence

• S.77A & B District Court Ordinance- Transfer from the DC to the CFI- Does not always avoid the hearing of a preliminary

inquiry as the option to elect is to be given to the defendant

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Class Activity

Mr. Ma wants to know what will happen at the second appearance before the Magistrate. Advise him, including in your advice a description of all of the possible applications which the prosecution could make and your opinion as to the application they will most likely make.

[HKSAR v Lo -Ching Fai [1996], HKSAR v Lau Pang [2004] – 3 years imprisonment is the proper starting point for a first offender of full age in a case of domestic premises burglary]