Hong Kong

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Contents

Introduction

Type of System

The legal system of the Hong Kong Special Administrative Region (the HKSAR) differs from that of the majority of the People’s Republic of China (the PRC) and is based on the common law. This is because Hong Kong was previously a British colony. On 1 July 1997 Hong Kong was handed back to the PRC.

The Basic Law and the Continuation of the Existing Legal System after 1 July 1997

The constitutional framework of the HKSAR is provided by the Basic Law. It has been enacted by the National People’s Congress (the NPC) of the PRC under Article 31 of the Chinese Constitution.

The Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the PRC on the Question of Hong Kong (the Joint Declaration) and the Basic Law guarantee the continuance of the pre-existing legal system after the PRC regained sovereignty over Hong Kong on 1 July 1997.

The laws in force in Hong Kong before 1 July 1997 continued to apply in the HKSAR after that date except for those which contravened the Basic Law. Some legislation was adapted to ensure compliance with the Basic Law and to reflect Hong Kong’s status as a Special Administrative Region of the PRC.

The Courts

The existing courts and tribunals were re-established on 1 July 1997 although some were renamed. The Hong Kong Court of Final Appeal was established to replace the Judicial Committee of the Privy Council as the highest court of appeal. All serving judges were reappointed by the HKSAR’s Chief Executive on 1 July 1997.

Pursuant to the Basic Law, judges from other common law jurisdictions may be invited to sit on the Court of Final Appeal.

The courts in Hong Kong are the following:

  • Magistrates’ Court
  • District Court
  • Court of First Instance (the CFI)
  • Court of Appeal
  • Court of Final Appeal

The Laws

The laws in force in the HKSAR are:

  • (a) the Basic Law; [1]
  • (b) the 12 national laws listed in Annex III to the Basic Law as applied to the HKSAR by way of promulgation or legislation;
  • (c) the laws in force before 1 July 1997, including the common law, rules of equity, customary law and statutory law, other than those not adopted as laws of the HKSAR by the NPC Standing Committee because they contravene the Basic Law (these laws apply irrespective of whether the conduct occurred prior to 1 July 2007); and
  • (d) laws enacted by the HKSAR’s legislature.

Only national laws relating to defence, foreign affairs or other matters outside the HKSAR’s autonomy may be added to Annex III to the Basic Law.

All legislation in force in the HKSAR is bilingual. The Chinese and English language versions are equally authentic. All legislation is published in a hard-copy loose-leaf edition and is also available at www.legislation.gov.hk. Preparations are now under way for the establishment of an electronic legislation database with legal status pursuant to the Legislation Publication Ordinance of 2011.

The legal aid situation in Hong Kong

Publicly funded legal aid

Publicly funded legal aid services are provided through the Legal Aid Department and the Duty Lawyer Service, in accordance with the Legal Aid Ordinance (Cap 91)[2] and the Legal Aid in Criminal Cases Rules (Cap 221D) (the Legal Aid Rules).[3]

Eligible applicants receive legal aid through the provision of the services of a solicitor and, if necessary, of a barrister. The Legal Aid Department provides legal representation to eligible applicants in civil or criminal proceedings.[4]

Legal aid is available for cases in the District Court, the CFI, the Court of Appeal and the Court of Final Appeal. It is also available for committal proceedings in the Magistrates' Courts. Any person who is a party to eligible court proceedings may apply for legal aid. Legal aid will be granted if the applicant is able to satisfy the statutory criteria as to financial eligibility and the merits for taking or defending the legal proceedings.

Where a legal aid certificate is granted, the Director of Legal Aid (the Director) may act for the aided person through lawyers employed in the Legal Aid Department. If the Director does not act for the aided person, he or the aided person may select a solicitor or counsel to act. The Director maintains separate panels of counsel and solicitors who are willing to investigate, report and give opinions on applications for legal aid and to act for aided persons. Aided persons may only select lawyers who are members of one of those panels.[5]

Civil Cases - The Ordinary Legal Aid Scheme

The Ordinary Legal Aid Scheme covers civil proceedings in the District Court, the CFI, the Court of Appeal, the Court of Final Appeal, certain coroner’s inquests and the Mental Health Review Tribunal.

In order to successfully apply for legal aid through the Ordinary Legal Aid Scheme, an applicant must pass the merits test and the means test. The means test is based on financial resources and in order to be eligible an applicant’s financial resources must not exceed the financial eligibility limit. The Director may waive the upper financial eligibility limit in meritorious cases involving a breach of the Hong Kong Bill of Rights Ordinance (the BORO)[6] or an inconsistency with the International Covenant on Civil and Political Rights (the ICCPR).[7]

Applicants must satisfy a merits test by demonstrating that there are reasonable grounds for taking or defending proceedings.

Civil Cases - The Supplementary Legal Aid Scheme

The Supplementary Legal Aid Scheme provides legal assistance to persons whose financial resources exceed the upper limit allowed under the Ordinary Legal Aid Scheme but whose resources are nevertheless below a certain higher eligibility limit.

Legal aid is available under the Supplementary Legal Aid Scheme for claims involving personal injury or death, or medical, dental and legal professional negligence if the claim is likely to exceed a certain threshold. It also covers any claim under the Employees’ Compensation Ordinance and representation for employees in any appeal against an award made by the Labour Tribunal.

Applicants for the Supplementary Legal Aid Scheme are required to pass a means test (which has a higher financial threshold) and the merits test by demonstrating reasonable grounds for taking proceedings. It is not available to people who are defending proceedings, other than defence of counterclaims.[8]

Criminal Legal Aid

Criminal legal aid provides the services of a solicitor and, if necessary, a barrister, to represent an accused person. It is available for committal proceedings in the Magistrates’ Court, cases tried in the District Court or CFI, and for all criminal appeals.

Legal aid is not available in the Magistrates’ Court for cases other than committal proceedings. Assistance might nevertheless be provided in the Magistrates’ Court by the Duty Lawyer Scheme (discussed below).

Applicants for criminal legal aid through the Legal Aid Department are required to pass:

  • (a) a means test (although if an applicant’s financial resources exceed the financial eligibility limit, the Director may waive the upper limit if satisfied that it is in the interests of justice to do so and subject to payment by the applicant of a contribution on higher rates calculated in accordance with the applicant’s financial resources); and
  • (b) a merits test (for trials in the District Court and the CFI, legal aid will be granted if it is desirable in the interests of justice to do so; for appeal cases, legal aid will be granted if there are valid grounds for appeal and it is in the interests of justice to do so).

Duty Lawyer Service

The Duty Lawyer Service operates the Duty Lawyer Scheme and the Free Legal Advice Scheme. [9] The Duty Lawyer Scheme provides legal representation by qualified lawyers in private practice to eligible defendants appearing in all Magistrates’ Courts, Juvenile Courts and Coroners Courts. Legal aid is not available in Magistrates' Courts except for committal proceedings. The Duty Lawyer Scheme provides legal representation to eligible defendants appearing in Magistrates Courts.

The Free Legal Advice Scheme provides preliminary legal advice to members of the public. The Scheme will not offer any follow up service or representation to applicants. There is no means test and the service is free of charge. Lawyers participate in the scheme on a voluntary basis.

Number of lawyers (criminal/civil)

Law is practised in the HKSAR by both solicitors and barristers. A solicitor provides services including transactional assistance, legal advice and representation. There are over 5,900 solicitors practising int he HKSAR.

Barristers are advocates that specialise in representing clients in court and providing specialised advice. There are approximately 1,000 barristers practising in the HKSAR.

Both professions are independently governed by national organisations. The Law Society of Hong Kong and the Bar Association of Hong Kong govern the professions of solicitors and barristers respectively.

Sources of a defendant's rights

National Sources of Defendant's rights

Chapter III of the Basic Law prescribes fundamental rights and freedoms in the HKSAR. The BORO also gives domestic effect to the provisions of the ICCPR as applied to the HKSAR. There is no definition of a resident for the purposes of the rights. The scope of each right varies; some are applicable to only "permanent residents" who have a right of abode, whilst other rights apply to everyone.

The Basic Law sets out fundamental rights in Articles 24 to 42. These include equality before the law and freedom of speech.[10]

International Sources of a defendant's rights

Under the Basic Law, multilateral treaties can apply to the HKSAR.

Article 39 of the Basic Law provides that the provisions of the ICCPR and the International Covenant on Economic, Social and Cultural Rights (the ICESCR)[11] as applied to the HKSAR remain in force and are implemented through the laws of the HKSAR.

Articles 4 and 5 of the BORO provide that the freedom of the person is inviolable. No resident may be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person is prohibited. Article 28 of the Basic Law prohibits torture of any resident or arbitrary or unlawful deprivation of the life of any resident.

Police Procedures

Police Questioning

The Hong Kong Police Force has issued a guidance note to arrested persons in relation to arrest and detention.[12]

Section 54 of the Police Force Ordinance (the PFO)[13] provides that police officers have the power to stop an individual who is acting in a suspicious manner, or an individual reasonably suspected to have committed, be about to commit or be intending to commit any offence. Police may demand that the individual produce identification and may detain the individual for a reasonable period while a police officer enquires about whether or not they have committed an offence. For individuals acting in a suspicious manner, police officers may search the person for anything that may present a danger to the police office or detain them for a reasonably required period where considered necessary. For an individual reasonably suspected of having committed, being about to, or intending to commit any offence, police may search them for anything of value to the investigation and detain them for a period considered reasonable.

A suspect may not be compelled to answer any questions as suspects enjoy the right to silence.[14]

Arrest, Search and Seizure Laws

Arrest

(a) Police Arrest Subsections 50(1), 50(1A) and 50(1B) of the PFO provide broad powers of arrest where a police officer has a reasonable belief that a person will be charged or a reasonable suspicion of a person’s guilt of any offence:

  • (i)with a sentence fixed by law, such as a mandatory sentence;
  • (ii)for which a person on first conviction could be sentenced to imprisonment;
  • (iii)where the service of a summons would be impracticable; or
  • (iv)if the person is liable for deportation.

Under section 50(1) of the PFO, an officer must be able to point to circumstances or events which created or caused the reasonable suspicion that an offence had been or was going to be committed. A reasonable suspicion is more than a mere possibility of guilt but it is not necessary to show a prima facie case that the arrested person is guilty. The test is an objective test. [15]

(b) Citizen's Powers of Arrest Sections 101 and 101A of the Criminal Procedure Ordinance (the CPO) provide citizens with the power to arrest a person they reasonably suspect of being guilty of an arrestable offence for which:

  • (i) the sentence is fixed by law; or
  • (ii) a person may be sentenced to imprisonment of more than 12 months.

There is also a common law citizen's power to arrest for breach of the peace.

(c) General principles of Arrest by police officer At the time of arrest the person should be informed of the reason for the arrest. This is required under both the common law[16] and Article 5(2) of the BORO. The circumstances in which it is not necessary to notify a person of the reason for their arrest are generally limited to situations when:

  • (i) giving the reason might make the arrest more difficult to effect;[17]
  • (ii) the arrested person is resisting arrest to the effect of making it impracticable to give the reason;[18] or
  • (iii) the arrested person is already aware of the reason for the arrest.[19]

Physical force, appropriate conduct or words must be used to make it clear that an arrest is occurring. It must be made clear to the arrested person that he is not free to go.[20] Any person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.[21]

Section 50(2) of the PFO provides that an officer may use all means necessary to effect the arrest if the suspect forcibly resists or attempts to evade it.

Section 40(5) of the PFO provides that police have the right to search the arrested person or the premises in which the person was arrested if a lawful arrest is made. They also have the right to take items found in any such search if the arresting officer reasonably expects those items to be of value in the investigation.

Search and seizure

Premises in the HKSAR may be searched with or without a warrant. Warrants may be issued under section 50(7) of the PFO by a magistrate. These allow police to enter, search for and seize property. There must be reasonable grounds to suspect that an item of value to an investigation may be located within premises in order for a warrant to be issued.

There are both common law and statutory authorities giving police powers to search premises without a warrant. The common law power allows police to search the area where an individual was arrested and to seize any appropriate item. This power should only be exercised when it is reasonably necessary and where it is reasonably impractical to obtain a search warrant. Sections 50(3), (4), (5) and (6) of the PFO provide police with further powers of search in order to make an arrest or search for items which are of value to the investigation.

Section 10C of the Independent Commission Against Corruption Ordinance (Cap 204) (the ICAC Ordinance)[22] allows officers of the Independent Commission Against Corruption (the ICAC) to search the premises where an individual is arrested whom they reasonably suspect is guilty of an offence under the ICAC Ordinance.

Line-ups (identification parades) and other identification procedures

There are no statutory rules regarding the conduct of identification parades in the HKSAR. There are nevertheless official police procedures which are set out in the Police Force Procedures Manual.

An identification parade is generally composed of a suspect and eight actors of similar appearance. It is organised and conducted by a senior police officer not involved in the investigation of the case. There must be no suggestion to witnesses regarding which person is the suspect. The suspect’s legal advisor can be present.

Confrontation identification, group identification or dock identification might be applicable if the accused refuses or is otherwise unable to participate in an identification parade. Confrontation identification involves the identification of a suspect immediately after an offence has been committed. Group identification involves the identification of a suspect from a group between apprehension and trial. Dock identification involves the identification of a suspect at trial.

Interrogation

The process of interrogation in the HKSAR is governed by the 1992 Rules and Directions for the Questioning of Suspects and the Making of Statements (the Rules). The Rules provide that statements must be voluntary and that persons in authority must not use threats, promises or deception. A failure to comply with the Rules may result in the evidence being inadmissible. Judges are entitled to admit evidence at their discretion which the Rules would classify as inadmissible when necessary to ensure a fair trial for the accused but rarely need to exercise such discretion in practice.

Rule 1 of the Rules provides that during the initial investigation stage police officers are entitled to question any person who they think may have useful information even if they are not a suspect.

Rule 2 of the Rules provides that police officers must caution the individual before putting more questions to them which relate to the offence once there is evidence that would afford reasonable grounds for suspecting that the individual has committed an offence. If the individual wishes to continue talking after receiving the caution then a contemporaneous record of proceedings must be kept. As far as practicable this record must record the time and place of the questioning and list the persons present.

Rule 3(a) of the Rules provides a format for cautioning the suspect if they are charged or informed that they may be prosecuted for an offence. The caution is in the following form:

Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.

A contemporaneous record must be kept of this questioning.

Rule 6(a) of the Rules provides that wherever possible all interviews should be conducted in the mother tongue of the individual being questioned.

Direction 8(1) of the Rules provides that individuals in custody or present with the police and under investigation should be allowed to speak to their friends or family by telephone and consult and communicate privately with their lawyer in writing or on the telephone provided that it will not cause an unreasonable delay or hindrance to the investigation or the administration of justice.

Police Powers

Stopping and Detaining a suspect

Article 5 of the BORO and Article 28 of the Basic Law require restraint of a person to be legally authorised.

Section 54 of the PFO provides that an officer may stop and detain for a reasonable period and search as appropriate:

  • (a) any person acting in a suspicious manner; or
  • (b) anyone whom the police reasonably suspect of having committed or being about to commit or intending to commit an offence.

There is no power of arrest under section 54 of the PFO. The general powers of arrest are set out in section 50(1) of the PFO. An arrest must conform to these requirements.

Questioning a suspect pre-arrest

The right to silence exists both before and after arrest and it is inappropriate to use an individual’s silence against them in any way.[23] However, sections 3 and 4 of the Organised and Serious Crimes Ordinance (Cap 455)[24] override this right: a CFI judge may make an order to compel individuals to answer questions relating to the investigation of organised crime. In addition, section 14 of the Prevention of Bribery Ordinance (Cap 201)[25] provides that ICAC may request a judge in a bribe investigation to order an individual to provide a statement explaining the source of money or property.

Pre Trial Procedures

A number of principles of defence, including those provided by the Basic Law, have been given effect through the enactment of the Criminal Procedure Ordinance (Cap 221) (the CPO) and the Legal Aid Rules. Other principles have been given effect by way of the common law. These principles are not distinct. For example, Article 11(4) of the BORO provides that "everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law". This principle is given practical effect in the CPO.

The Basic Law guarantees principles of defence including:

  • (a) equality before the courts (Article 10);
  • (b) the right to a fair and public trial by a competent, independent and impartial tribunal established by law (Article 10);
  • (c) the right to trial by jury in the most serious cases;
  • (d) the presumption of innocence (Article 11);
  • (e) the burden of proof lies with the prosecution;
  • (f) the standard of proof is ‘beyond reasonable doubt’;
  • (g) the right to prompt and detailed information as to the nature and cause of the charge;
  • (h) adequate time for preparation of the defence case;
  • (i) the right not to be tried or punished for an offence for which a suspect has already been convicted or acquitted in
  • (j) accordance with the law (Article 11);
  • (k) the right to legal representation;
  • (l) the right to be tried without undue delay;
  • (m) the right to legal assistance;
  • (n) the right to call witnesses and secure their presence in court;
  • (o) the right to cross-examine prosecution witnesses;
  • (p) the right to have the free service of an interpreter;
  • (q) the right to remain silent in court;
  • (r) the right to appeal either or both of conviction and sentence; and
  • (s) the limited right to bail pending trial or appeal depending on the gravity of the offence and surrounding circumstances.

the right to be tried in one's presence;

Rights of the accused at all times

Double jeopardy

Article 11(6) of the BORO provides that no one shall be liable to be tried or punished again for an offence for which they have already been convicted or acquitted in accordance with the law and penal procedure of the HKSAR.

Presumption of innocence

Article 11(1) of the BORO provides for the presumption of innocence. Everyone charged with a criminal offence has the right to be presumed innocent until proven guilty according to law.

Right against self-incrimination

Article 11(2)(g) of the BORO provides that the defendant has the right no to be compelled to testify against themselves or to confess guilt.

Witnesses

The prosecution and the defendant may use witness evidence to support their case. Article 11(2)(e) of the BORO provides the defendant with the right to examine or have examined witnesses brought against them and to have witnesses present on their behalf.

Rights during trial

Article 11(2) (f) of the BORO provides that accused persons have the right to an interpreter during the trial if they cannot speak or understand the language used in court.

Right to an appeal

Article 11(4) of the BORO provides that everyone convicted of a crime shall have the right to have their conviction and sentence reviewed by a higher tribunal according to law (meaning an appellate court or tribunal).

Ex-post facto punishment (retrospective punishment)

Article 12 of the BORO provides that there is no retrospective punishment in the HKSAR for acts or omissions which did not constitute a criminal offence at the time committed. Heavier penalties cannot be imposed other than those applicable at the time the offence was committed.

Fair trial Rights

Article 87 of the Basic Law provides that all defendants are guaranteed the right to a fair trial without delay and that they shall be presumed innocent until convicted.

Right to counsel

Article 11(2)(d) of the Basic Law provides that all persons in the HKSAR have the right to seek legal assistance. All individuals have the right to defend themselves through legal assistance of their own choosing. Individuals have the right to legal assistance which should be without payment if they do not have sufficient means to pay. Further, Article 11(2)(b) of the BORO provides that accused persons must be given adequate time and facilities to prepare their defence and communicate with their chosen counsel.

Right to habeas corpus

Article 22A of the High Court Ordinance (Cap 4)[26] provides that an application for a habeas corpus writ may be made to the CFI alleging that an applicant is being unlawfully detained and requesting the issuing of a writ of habeas corpus. The detained individual, or any other person on their behalf can make an application. As soon as practicable after receiving the application the CFI must inquire into the allegation. All proceedings must be conducted in open court. If satisfied that the application has substance the CFI can order the issue of a writ of habeas corpus directing that the person with custody over the applicant bring the applicant before the Court at a specified date to certify the grounds for detention or bring the person with custody over the applicant to Court to justify the lawfulness of the detention. If satisfied that the application has no substance the CFI may dismiss it.

Right to notice of charges

Article 11(2)(a) of the BORO provides that all individuals should be informed of the nature and cause of the charges against them and in detail in a language they can understand.

Right to non-self incrimination

Article 11(2)(g) of the BORO provides that individuals cannot be compelled to testify against themselves or to confess guilt.

Right to a fair and speedy trial

Article 5(3) of the BORO provides that anyone arrested or detained on a criminal charge must promptly be brought before a judge or legal officer. Individuals are entitled to a trial within a reasonable time or to release from detention. Further, Article 5(4) of the BORO provides that individuals deprived of their liberty are entitled to initiate proceedings before a court to decide the lawfulness of their detention. Article 5(5) of the BORO provides that individuals who are unlawfully arrested or detained have enforceable rights to compensation. Article 11(2)(c) of the BORO provides further rights to be tried without undue delay.

Rights pre-trial

Article 6(2)(a) of the BORO provides that accused persons shall be segregated from convicted persons and subject to separate treatment, save in exceptional circumstances. Further, 6(2)(b) of the BORO provides that accused juveniles must be separated from adults and brought as speedily as possible for adjudication. Articles 6(3) and 11(3) of the BORO provide that the procedure for juveniles should take into account their age and the desirability of promoting their rehabilitation.

Right to an independent and impartial court

Article 10 of the BORO provides that individuals have the right to be tried by a competent, independent and impartial tribunal established by law and to a fair and public hearing. All persons are equal before the courts and tribunals. In some instances the public and press may be excluded from all or part of the trial.

Right to disclosure

Defendants have the right to receive relevant information from the prosecution regarding their cases even if the information may be injurious to the prosecution’s claim. The prosecution is required to inform the defendant of any discreditable behaviour of a prosecution witness that may affect their assessment as a witness. Information may be withheld from the defendant if considered prejudicial to the public interest. This duty of disclosure is both a statutory and common law duty. The statutory source of this duty is provided in Article 39 and 87 of the Basic Law and Article 11(2) of the BORO. The common law duty is derived from the defendant’s right to a fair trial which implies that a defendant should possess adequate knowledge of the prosecution’s case.

Rights in prison

The General Rules for the Government of Prisons (the Prison Rules)[27] outlines the general conditions of prisons in the HKSAR.

Conditions of confinement

Rule 54 of the Prison Rules provides that all prisoners have the right to petition the Chief Executive during the first year of their sentence and once every year thereafter unless the Superintendent in charge of the relevant prison considers that there is sufficient cause to justify additional petitions. The Prison Rules do not limit the scope of the subject matter in respect of which a prisoner may petition.

Medical care

Rule 5 of the Prison Rules provides that all prisons are required to have a hospital or another designated place for the reception of sick prisoners. All prisoners undergo a physical examination on admission that is conducted as soon as possible after prisoners are admitted. Rule 14 of the Prison Rules provides that prisoners must be examined separately by a medical officer who will create a record on the state of their health. The physical examination should be conducted on the date of admission into prison or within 24 hours of admission. Prisoners may obtain medical treatment in prison or in one of the two custodial wards at the government hospital. Prisoners have access to dental care and specialist treatment if required.

Women’s rights

Rules 6, 7 and 10 of the Prison Rules provide that female prisoners must be kept in premises entirely separate from male prisoners. Female premises must be controlled by female officers. Male officers may only enter female premises on duty and in the company of a female officer. Female prisoners should only be searched by female officers. Rule 21 of the Prison Rules contains further rights for female prisoners with children. The child of a female prisoner may be received into prison with its mother during the normal lactation period. The child can remain with the mother until a medical officer certifies that the child is in a condition fit to be removed. The medical officer will report to the Commissioner of prisons as to whether it is necessary or desirable for the child to remain in the prison once the child reaches nine months or is over that age. No child over the age of three years may remain in prison.

Court procedures

Preliminary investigation and trial

Police generally decide whether to charge a suspect. Section 52(1) of the PFO provides that a defendant must be brought before a magistrate within 48 hours and without unreasonable delay if charged. During this period lawyers should deal with the police officers in charge of the case. A magistrate has the responsibility to decide whether to issue bail or remand the defendant into custody. The matter is then sent to the prosecution’s office. The prosecution will decide to proceed with the same charge, amend the charge or withdraw the charge completely. When deciding whether to charge or not the prosecution must take into account the Statement of Prosecution Policy and Practice.[28]

Bail

Bail means release of a person from detention based on an undertaking, with or without conditions, to surrender to custody as ordered by the court or directed by the police. There is a presumption of entitlement to bail. Article 5(3) of the BORO provides that

it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.

Section 52 of the PFO allows police to grant bail if the offence is not serious and there is no reason to detain the defendant. The individual will be charged and appear before a magistrate if police bail is not given. The defendant will be remanded into police custody or gaol custody. Any time on remand will count towards a subsequent custodial sentence.

Two forms of bail are available to the defendant:

  • (a) Police bail

The individual will generally be granted bail by the police in charge of the station after they are charged. If the charge is very serious bail may not be granted by the officer. Provided the charge is not yet laid, an individual may be released on cash bail or recognisance that they will return to the police station if required.

  • (b) Magistrates’ bail

Police bail will expire once an individual is brought in front of a magistrate and magistrates’ bail will then apply. Magistrates’ bail is given generally and may include certain conditions. Bail may not be given if it is likely that the individual will interfere with witnesses, the offence is serious or there is a strong likelihood that the individual will abscond. Part 1A of the CPO contains the rules that relate to magistrates’ bail. If an individual is charged with murder or treason they will need to seek bail from a CFI judge.

Assessing the admissibility of evidence

A voir dire will be held in the CFI if issues arise regarding the admissibility of evidence. This is a mini trial to determine the admissibility of evidence and is generally held in the absence of a jury. The preferred method for the Magistrates’ and District Court to assess the admissibility of evidence is the ‘alternative procedure’. In this method questions are determined within the trial rather than in a separate mini trial. This is possible as these courts do not involve a jury.

Trial

Trials in the Magistrates’ Court take place in front of a magistrate. The magistrate is not under any obligation to provide reasons for their verdict but will often do so in practice. Magistrates are required to provide reasons when deciding an appeal case. District Court judges must supply reasons within 21 days of delivering a judgment.

Trials in the District Court or the CFI will be conducted before a jury. Section 4 of the Jury Ordinance (Cap 3)[29] provides that jurors must be between the ages of 21 and 65 years, be a resident in the HKSAR, be of sound mind, not be afflicted by blindness, deafness or other disabilities affecting service, be of good character and have sufficient knowledge of the English language.

Once the jury is empanelled the case begins with the prosecution explaining the offence and facts to the jury and identifying the witnesses. The prosecution will then call on the prosecution witnesses to give evidence and the witnesses may be cross-examined by the defence counsel. After the prosecution has pleaded their case the defence may make a “no case” submission. The judge or magistrate must direct the jury to acquit the defendant if the prosecution case, even taken at its highest, would not allow a jury to convict the defendant. If there is no ‘no-case’ submission, the defence counsel then presents their case. Following this, the both parties may make a closing submissions. The judge will sum up the facts of the case and direct the jury who will deliberate their verdict. The jury will deliver their verdict and the judge will decide on sentencing appropriately.

Assessing

All matters commence in the Magistrates’ Court. The prosecution sends the case to be heard in the appropriate court depending on the maximum sentence available for the crime - the Magistrates' Court needs to determine the correct court to hear the case. The Magistrates’ Court will hear the case if the maximum sentence is two years or less. If the maximum sentence is seven years or less the case will be heard in the District Court. Other cases will be heard in the CFI where there is no limit to the maximum penalty available.

Sentencing

Sentencing will take place after the offender has been convicted following the jury trial. There are statutory penalties for the majority of offences which consist of a term of imprisonment or a fine. Certain offences such as murder, manslaughter and common law conspiracy are common law offences. Murder has a mandatory sentence of life imprisonment. Sections 2 and 7 of the Offences Against the Person Ordinance (Cap 212)[30] provide that manslaughter has a discretionary life imprisonment penalty. Sentencing will take place by a judge in the court that is considered most appropriate.

  • (a) Crimes that have a maximum of two years imprisonment and a fine of $100,000 will generally be heard in the Magistrates’ Court.
  • (b) Crimes that have a maximum of seven years imprisonment and no fine limit will be heard in the District Court.
  • (c) Crimes that have a maximum sentencing above those listed will be heard in the CFI.

Maximum sentences are reserved for the most severe offences.[31] Sentences may be discounted. A discounted sentence is generally awarded to an early guilty plea. The fact that a defendant has challenged the evidence against them and lost does not preclude them from receiving a discount.

Penalties

Penalties other than imprisonment are also available:

Bind-over orders

A bind-over order is a promise by the defendant to keep the peace or be of good behaviour and not commit an offence for a specified period of time. If the offence is committed during the specified period then the accused or their surety must pay a sum of money or they may be sentenced to a term of imprisonment.

Community service orders

A community service order may be made pursuant to the Community Service Orders Ordinance (Cap 378) if the accused is 14 years of age or older.[32] The community service order may be for a maximum of 240 hours of unpaid work over a period of 12 months. Community service orders may only be given with the consent of the accused.

Compensation orders

Section 98 of the Magistrates Ordinance (Cap 227)[33] provides that a magistrate may order an offender to pay compensation to the victim if the magistrate thinks that the paying of compensation is reasonable. Compensation orders are available for personal injury, and loss or damage to property. There is a compensation limit of $100,000. A compensation order is an addition to the main sentence and does not replace it.

Confiscation orders

Confiscation orders apply to drug trafficking and organised crime offences. The CFI and the District Court may order that the proceeds of criminal activity be confiscated.

Young defendants

Defendants who are male and aged between fourteen and twenty-five years may be sentenced to a detention centre order for a period of between three to twelve months in a centre which specialises in receiving young offenders.

The Reformatory Schools Ordinance (Cap 225)[34] provides that young males aged between ten and fifteen years may be sentenced to attend reformatory school for a period of between one to three years.

The Rehabilitation Centres Ordinance (Cap 567)[35] provides that defendants who are aged between fourteen and twenty-one years may be ordered to attend a rehabilitation centre in which they are to reside after studying, working or engaging in other approved activities

The Training Centres Ordinance (Cap 280)[36] provides that defendants who are aged between fourteen and twenty years may be detained in a training centre to undergo a period of training to reform the offender’s character.

Rehabilitation

Convicted persons may be sentenced to spend a period of between two to twelve months in a drug addiction treatment centre. Defendants must be assessed in order to determine their suitability for the cure and rehabilitation.

Appeals

There is no common law right to an appeal in the HKSAR to the effect that appeals must be made pursuant to an applicable Ordinance.

A magistrate’s decision is appealed to the CFI. CFI and District Court decisions are appealed to the Court of Appeal. The Court of Final Appeal hears appeals as the final court of the HKSAR.

Conviction

Article 11 of the BORO provides that an offender may appeal against their conviction. The provisions of Part IV of the CPO give effect to that right.

Sentence

Article 11 of the BORO provides that an offender may appeal against their sentence. The provisions of Part IV of the CPO give effect to that right.

Section 81A of the CPO provides that the Secretary for Justice may, with the leave of the Court of Appeal, appeal against a sentence for being wrong in principle, manifestly excessive or manifestly inadequate.



References

  1. See the full text of the Basic Law at: http://www.basiclaw.gov.hk/text/en/basiclawtext/
  2. See the full text of the Legal Aid Ordinance (Cap 91) at http://www.legislation.gov.hk/blis_pdf.nsf/6799165D2FEE3FA94825755E0033E532/07BCC0B0FE1EC8A1482575EE0037F553/$FILE/CAP_91_e_b5.pdf
  3. See the full text of the Legal Aid in Criminal Cases Rules (Cap 221D) at http://www.legislation.gov.hk/blis_pdf.nsf/6799165D2FEE3FA94825755E0033E532/D2405B17B91E99B1482575EE004F1B6D/$FILE/CAP_221D_e_b5.pdf
  4. See the website of the Legal Aid Department at www.lad.gov.hk
  5. See section 13(3) of Cap 91
  6. See the full text of the Hong Kong Bill of Rights Ordinance at http://www.legislation.gov.hk/blis_pdf.nsf/6799165D2FEE3FA94825755E0033E532/AE5E078A7CF8E845482575EE007916D8/$FILE/CAP_383_e_b5.pdf
  7. See the full text of the International Covenant on Civil and Political Rights at http://www.refworld.org/pdfid/3ae6b3aa0.pdf
  8. See Part 1 of Schedule 3 to Cap 91
  9. See Duty Lawyer Service website at http://www.dutylawyer.org.hk/en/free/free.asp
  10. Article 27, Basic Law.
  11. See the full text of the International Covenant on Economic, Social and Cultural Rights at http://www.cmab.gov.hk/doc/en/documents/policy_responsibilities/icescr.doc
  12. See http://www.police.gov.hk/info/doc/pol/en/Pol-1128.pdf
  13. See the full text of the Police Force Ordinance at http://www.legislation.gov.hk/blis_pdf.nsf/6799165D2FEE3FA94825755E0033E532/7E4D875F6BBDF825482575EE0050597B/$FILE/CAP_232_e_b5.pdf
  14. Rice v Connolly [1996] 3 WLR 17.
  15. R v Cheung Wai-wan and Wan Sze-shing v. A-G [1980] HKLR 550.
  16. Christie v Leachinsky [1947] AC 573, HL
  17. R v Ku Kat-sui [1989] 2 HKC 526, HC.
  18. HKSAR v Ip Kenneth [2006] 2 HKLRD 433.
  19. Ibid
  20. Shaabin Bin Hussein v Chong Fook-kam [1970] AC 942, PC.
  21. See section 101A(1) of Cap 221.
  22. See the full text of the Independent Commission Against Corruption Ordinance (Cap 204) at http://www.legislation.gov.hk/blis_pdf.nsf/CurAllEngDoc/A3E9ED78744D8631482575EE004CB37D/$FILE/CAP_204_e_b5.pdf
  23. Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600.
  24. See the full text of the Organised and Serious Crimes Ordinance (Cap 455) at http://www.legislation.gov.hk/blis_pdf.nsf/6799165D2FEE3FA94825755E0033E532/4D1FF665EFF4E8B0482575EF0009EBA1/$FILE/CAP_455_e_b5.pdf
  25. See the full text of the Prevention of Bribery Ordinance (Cap 201) at http://www.legislation.gov.hk/blis_pdf.nsf/CurEngOrd/660A25EA15B8C9D6482575EE004C5BF1/$FILE/CAP_201_e_b5.pdf
  26. See the full text of the High Court Ordinance (Cap 4) at http://www.legislation.gov.hk/blis_pdf.nsf/6799165d2fee3fa94825755e0033e532/E3C89D7AC07002EE482575EE002A70D9/$FILE/CAP_4_e_b5.pdf
  27. See the full text of the General Rules for the Government of Prisons at http://www.legislation.gov.hk/blis_pdf.nsf/4f0db701c6c25d4a4825755c00352e35/C91C6D774F99548F482575EE0050CA96/$FILE/CAP_234A_e_b5.pdf
  28. See the full text of the Statement of Prosecution Policy and Practice at http://www.legco.gov.hk/yr05-06/english/panels/ajls/papers/aj0203cb2-sppp-e-scan.pdf
  29. See the full text of the Jury Ordinance (Cap 3) at http://www.legislation.gov.hk/blis_pdf.nsf/6799165D2FEE3FA94825755E0033E532/9B7D35E42635E9EA482575EE002A5989/$FILE/CAP_3_e_b5.pdf
  30. See the full text of the Offences Against the Person Ordinance (Cap 212) at http://www.legislation.gov.hk/blis_pdf.nsf/4f0db701c6c25d4a4825755c00352e35/43CA4DC0171D9224482575EE004D5CE1/$FILE/CAP_212_e_b5.pdf
  31. R v Pang Chun-Wai [1993] 1 HKC 233
  32. HKSAR v Chow Chak Man and Another [1999] 2 HKC 659, CA.
  33. See the full text of the Magistrates Ordinance (Cap 227) at http://www.legislation.gov.hk/blis_pdf.nsf/4f0db701c6c25d4a4825755c00352e35/FCE2EE462FE99FF0482575EE004FC664/$FILE/CAP_227_e_b5.pdf
  34. See the full text of the Reformatory Schools Ordinance (Cap25) at http://www.legislation.gov.hk/blis_pdf.nsf/6799165D2FEE3FA94825755E0033E532/D9FF47BCCCF15547482575EE004F6ABE/$FILE/CAP_225_e_b5.pdf
  35. See the full text of the Rehabilitation Centres Ordinance (Cap 227) at http://www.legco.gov.hk/yr0001/english/ord/ord011-01-e.pdf
  36. See the full text of the Training Centres Ordinance (Cap 280) at http://www.legislation.gov.hk/blis_pdf.nsf/6799165D2FEE3FA94825755E0033E532/6400D7B668DEA1DF482575EE00565EDB/$FILE/CAP_280_e_b5.pdf



See Criminal Justice Systems Around the World