Difference between revisions of "Hong Kong"

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Section 10C of the Independent Commission Against Corruption Ordinance (Cap 204) (the ICAC Ordinance)<ref> 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 </ref> 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.
 
Section 10C of the Independent Commission Against Corruption Ordinance (Cap 204) (the ICAC Ordinance)<ref> 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 </ref> 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.
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===Line-ups (identification parades) and other identification procedures===
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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.
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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.
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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.
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===Interrogation===
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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.
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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.
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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.

Revision as of 11:59, 5 January 2015

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.
  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