Professional Documents
Culture Documents
Conversion Series Criminal Procedure in Hong Kong
Conversion Series Criminal Procedure in Hong Kong
Mak
-
-
-
-
-
-
-
-
-
1st
appearance
of
all
cases
is
always
in
the
Magistrate
Court
(MC),
where
the
prosecution
may
ask
for
the
case
to
be
transferred
to
the
District
Court
(DC)
or
to
hear
committal
proceedings
in
the
MC
to
determine
if
it
could
be
transferred
to
the
Court
of
First
Instance
(CFI)
The
first
appearance
in
court
of
an
arrested
person
will
always
be
the
MC.
This
is
so
even
if
the
venue
decision
has
not
yet
been
made,
or
if
the
prosecution
has
already
decided
that
the
venue
will
either
be
the
DC
or
the
CFI
Often
on
an
accused
persons
first
appearance
before
the
magistrate,
no
plea
is
taken.
This
means
that
for
various
reasons
the
prosecution
has
not
yet
made
a
final
decision
regarding
venue.
The
result
is
that
the
case
is
adjourned
and
the
accused
person
is
ordered
to
appear
again
in
the
MC
at
a
later
date.
What
is
likely
to
happen
on
2nd
appearance
and
in
which
court?
Classification
of
the
offence
(three
categories
of
criminal
offences)
Summary
Indictable
Indictable
offences
that
can
be
tried
summarily
(can
be
tried
in
all
three
courts
unless
specifically
has
to
be
in
DC
because
it
is
a
matter
mentioned
in
2nd
Schedule
of
the
Magistrate
Ordinance(MO))
Jurisdiction
of
Courts
in
relation
to
the
classification
Venue
for
hearing
criminal
offences
Decisions
as
to
venue
Transfer
and
committals
SUMMARY
OFFENCES
- S15A
CPO
an
offence
is
summary
unless
the
ordinance
which
creates
the
offence
declares
the
offence
to
be
treason
or
uses
the
words
like
indictment
- usually
tried
in
the
MC
- S88
MO-
Only
reason
to
be
tried
in
DC
is
that
if
offence
is
on
same
charge
sheet
as
an
indictable
offence
- If
defendant
pleads
guilty
to
summary
offence
then
MC
may
hear
the
plea
in
mitigation
for
the
summary
offence
before
transferring
the
indictable
offence
to
the
DC
- May
only
be
transfer
to
CFI
if
s79F
Criminal
Procedure
Ordinance
(CPO)
it
is
a
summary
charge
involving
sexual
abuse
or
cruelty
to
children.
Terence Mak
Most
prosecutions
must
be
initiated
within
six
months
of
the
offence
being
committed
INDICTABLE
OFFENCES
- S14A
CPO:
More
serious
offences,
only
indictable
if
the
statute
provides
the
crime
is
Indictable
Trial-able
on
indictment
or
If
person
commits
the
offence
he
shall
be
liable
on
conviction
on
indictment
- The
common
law
offences
are
indictable
offences
but
may
be
tired
summarily
subject
to
limitation
found
in
2nd
Schedule
of
MO
- S91-94A
MO
-
Most
indictable
offences
can
be
tried
in
the
MO
unless
stated
in
Part
1
of
the
2nd
schedule
MO.
- If
purely
indictable
technically
to
the
CFI,
check
to
see
if
DC
can
hear.
- No
time
limit
for
filing
the
charge,
except
specified
in
the
statute
Where
it
is
a
matter
that
can
be
tried
in
more
than
one
level,
the
Prosecution
decides
based
on
sentencing
power
and
sentencing
guidelines
based
on
the
maximum
sentence
approach
Magistrates
Court
- A
summary
matter
is
generally
tried
here
- A
summary
matter
is
transferred
to
the
DC
where
it
appears
on
the
same
charge
sheet
as
an
indictable
offence,
which
the
Prosecution
has
determined
is
too
serious
for
summary
determination
in
the
summary
jurisdiction.
- Can
hear
indictable
offences
in
Part
III
MO
- Can
hear
some
indictable
offences
as
set
out
in
the
2nd
schedule
to
the
MO
Part
1
to
2nd
schedule:
sets
out
indictable
offences
that
Magistrates
cannot
hear
Part
2
to
2nd
schedule
sets
out
MO
can
hear
but
only
a
permanent
magistrate
and
not
a
special
magistrate
Part
3
to
2nd
schedule
sets
offences
that
can
only
be
determined
by
CFI
ALL
INDICTABLE
MATTERS
WHICH
ARE
NOT
MENTIONED
IN
THE
2ND
SCHEDULE
CAN
BE
TRIED
IN
THE
MO,
DC
or
CFI.
- Permanent
magistrates:
may
hear
summary
offences
and
indictable
offences
not
appearing
in
2nd
schedule
of
MO
except
for
the
ones
listed
in
part
2
of
the
2nd
schedule
POWERS:
s92
and
92A
MO
-
2
years
imprisonment
and
$100,000
fine
for
a
single
offence
s52MO
if
more
than
one
consecutive
then
up
to
3
years
- Special
magistrate:
Hears
summary
and
indictable
offence
not
listed
on
2nd
schedule.
S91
MO-
Single
offence-6
months
and
$50,000
More
than
one
offence-12
months
District
Court
- Must
be
transferred
from
magistrate
on
application
by
the
prosecution
- Can
determine
any
indictable
matter
not
listed
in
part
3
of
the
2nd
schedule
MO
Terence Mak
S82(2)(a) District Court Ordinance (DCO): can impose max 7 years imprisonment
The
Court
of
First
Instance
- S85(2)
MO-
Test
for
committal
of
criminal
case:
whether
the
evidence
is
sufficient
to
put
D
on
trial
for
an
indictable
offence
or
if
evidence
given
raises
a
strong
or
probable
presumption
of
the
Ds
guilt
- Has
jurisdiction
over
all
indictable
offences
but
no
jurisdiction
to
hear
summary
offence
- Involves
7-9
jurors
as
the
judge
sees
fit
- Hears
Committal
by
a
magistrate
under
Part
III
of
MO
Voluntary
bill
has
been
accepted
Proceedings
have
been
transferred
pursuant
s4
Complex
Commercial
Crimes
Ordinance
S79F
CPO
Proceedings
transferred
under
s77A
DCO
Order
for
retrial
s83E
CPO
Procedure
if
matter
is
to
be
transferred
to
the
DC:
- S88(1)
MO
a
signed
application
form
Is
handed
to
the
Magistrate
to
transfer
the
case
to
DC
- To
effect
the
transfer
the
magistrate
must
sign
a
transfer
form
- S88(2)
Application
may
be
made
orally
or
in
writing
- Magistrate
has
no
jurisdiction
to
refuse
indictable
offence
- They
may
refuse
summary
offence
only
if
it
can
be
completely
dealt
with
independently
from
indictable
offence
Procedure
if
matter
is
to
be
tried
in
CFI
- Trial
on
indictment
(e.g.
those
offences
in
Part
3
Schedule
2
MO,
which
are
those
offences
that
must
be
heard
before
a
jury
or
with
a
life
sentence)
- Mag-CFI
Committal
proceedings
maybe
required
in
the
MC
first
although
in
HK
it
is
usually
just
on
paper
committal
S80A
MO
Prosecution
request
the
MC
for
a
return
day,
which
is
not
less
than
10
days
nor
more
than
42
days
ahead
The
preliminary
inquiry
may
be
held
to
determine
if
the
case
should
be
moved
towards
the
CFI,
but
does
not
determine
the
guilt
of
the
defendant
Paper
committal
is
where
the
case
is
automatically
committed
and
the
defendant
is
committed
on
the
return
day
an
no
preliminary
inquiry
is
necessary
Not
less
than
7
days
prior
to
the
return
day,
the
prosecution
will
serve
copies
of
the,
charge
sheet,
the
prosecution
witness
statements
and
documentary
exhibits
On
return
day
an
election
is
made
by
a
paper
committal
or
a
preliminary
inquiry
Terence Mak
If
a
preliminary
inquiry
is
held
the
matter
will
proceed
and
the
defence
will
have
a
chance
to
cross
examine
the
prosecution
witness
in
the
hope
of
an
s82
no
case
to
answer
or
be
committed
to
trial.
But
must
inform
prosecution
and
magistrate
7
days
prior
to
preliminary
inquiry
date,
which
witnesses
he,
wishes
to
question.
If
he
plead
guilty
s81B
MO:
the
magistrate
must
explain
the
offence
he
is
charged
with
and
the
elements
of
the
offence
at
law
and
record
any
statement
made
by
the
defendant
in
pleading
guilty
to
the
charge
and
record
that
the
offence
and
the
element
of
the
offence
at
law
were
explained
to
him.
If
satisfied
that
the
plea
is
voluntary,
he
should
commit
the
defendant
for
sentence
in
the
CFI
After
hearing
all
evidence
for
the
magistrate
must
decide
whether
to
commit
the
defendant
for
trial
in
the
CFI.
The
test
is:
s85(2)
MO:
whether
there
are
sufficient
evidence
to
put
the
defendant
upon
trial
for
an
indictable
offence,
or
if
the
evidence
given
raises
a
strong
probable
presumption
of
the
defendants
guilt
S80C
(4)
MO
Paper
Committal:
again
he
will
be
informed
of
his
rights
and
asked
if
he
pleads
guilty.
If
pleads
not
guilty,
under
s16
CPO
he
has
right
to
apply
to
CFI
for
a
discharge.
Paper
committal,
the
accused
will
be
committed
to
CFI
for
trial
or
sentence
Procedure
if
matter
is
tried
in
the
MC
- Plea
to
be
taken
in
the
MC
Formal
admissions
Guilty
plea
- HKSAR
v
Li
Yan:
guilty
plea=1/3
discount
only
deny
if
exceptional
reasons
(HKSAR
v
CHUI
CHI
WAI)
- But
if
they
delay
the
plea
mid
trial
then
the
court
may
deny
the
discount
(HKSAR
v
LEE
Man
Kei)
- Once
entered
into
guilty
plea
cannot
change
without
the
leave
of
the
court.
Cannot
appeal
against
conviction
if
he
has
pleaded
guilty
unless
showing
fundamental
mistake:
The
facts
he
admitted
are
not
the
basis
of
the
charged
offence(Chai
Wai
La)
The
fact
he
admitted
could
establish
both
guilt
and
innocence
(Chan
Ching
Chi)
The
charge
he
pleaded
guilty
to
its
defective,
invalid
or
unclear
(Chao
Tse
Yuen)
He
pleaded
guilty
under
duress
(Man
Kam
Wing)
He
was
labouring
under
a
fundamental
mistake
(R
v
Peters)
He
was
not
making
an
informed
choice
(R
v
Wong
Wai
Leung)
Prosecution
gave
inadequate
disclosure
(R
v
Early)
- When
pleading
guilty,
the
brief
facts
of
the
case
will
be
repeated
to
him
in
court
and
he
as
to
agree,
before
the
court
will
sentence
him
- S65C
CPO-the
brief
facts
if
admitted
are
binding
admissions
Terence Mak
If
he
wants
to
plead
guilty
but
disputes
the
brief
facts
or
summary
of
the
prosecutions
case
e.g.
plead
guilty
to
assault
but
dispute
the
number
of
times
or
the
way
in
which
he
was
alleged
to
have
struck
the
victim:
NEWTON
INQUIRY
- NEWTON
INQUIRY:
this
is
to
challenge
the
gravity
of
the
criminality
as
it
goes
to
the
potential
sentencing
R
v
Tolera:
if
no
agreement
can
be
reached
regarding
the
facts,
hold
Newton
inquiry
to
determine
the
disputed
fact
unless
making
an
implausible
assertion
or
if
dispute
makes
no
difference
to
sentencing
Counsel
should
approach
prosecution
first
The
prosecution
may
call
witnesses
to
give
evidence
on
the
fact
in
dispute
Burden
of
Proof
on
the
prosecution
If
no
evidence
or
substantial
conflict
then
the
defendant
will
have
the
benefit
of
the
doubt
Test
for
proving
evidence
in
these
enquiries
If
denial
of
element
goes
to
the
root
of
the
offence
then
it
cannot
be
said
that
a
guilty
plea
was
entered
into.
Admission
of
evidence
by
written
statement
s65B
CPO
- The
statement
has
to
be
admissible,
relevant
and
more
probative
than
prejudicial
- Written
statements
to
be
tendered
as
evidence
as
if
the
writer
had
given
that
evidence
viva
voce
in
the
course
of
the
trial
- Statement
must
be
served
at
least
14
days
before
trial
commences
- If
no
objection
is
made
within
14
days
the
parties
will
deemed
to
have
agreed
that
the
witness
need
not
appear
to
give
oral
evidence
at
trial.
- The
court
may
still
require
the
witness
to
attend
for
examination
- EXEPRTS:
HRSAR
v
Wong
Ching
Yin:
deemed
agreement
on
expert
status
- The
effect
of
this
section
is
that
you
will
lose
right
to
cross
examination
but
can
call
contradictory
evidence
- PD
9.3
Criminal
proceedings
in
CFI:
if
SJ
wants
to
use
witness
statements:
need
to
be
served
7
days
before
the
trial
commences
and
if
object
must
let
SJ
know
as
soon
as
possible
Admission
of
proof
by
formal
admission
s65C
(1)
CPO
- Made
by
s65C
CPO,
before
or
during
the
trial
by
either
party,
should
be
in
writing
signed
by
the
person
making
it
or
by
the
solicitor
on
the
defendants
behalf,
once
admitted
binds
for
current
proceedings
and
subsequent
proceedings
- Features
Enables
parties
to
make
formal
admission
before
and
during
trial
Must
be
relevant
and
admissible
Must
be
noted
for
the
record
and
specific
Only
binds
the
maker
of
the
admission
Once
admitted
cannot
be
contradicted
without
leave
from
the
court
- If
made
during
trial
it
may
be
admitted
orally
but
may
be
in
writing
if
before
trial
- Usually
a
s65C
admission
is
for
the
accused
to
admit
the
chain
of
evidence
- This
in
effect
means
that
the
accused
is
admitting
the
correct
procedure
had
been
followed
by
the
Prosecution
(Lam
Chi
Keung
v
HKSAR),
such
that
since
the
evidence
was
admitted,
it
was
not
tampered
with
whilst
in
police
custody
Terence Mak
-
-
-
-
-
-
-
-
-
Alibi
Evidence
s90
(1)(d)
MO
- On
transfer
of
case
to
DC,
Magistrates
are
required
to
give
the
defendant
an
alibi
warning
that
particulars
of
an
alibi
must
be
given
to
the
Prosecution
within
ten
days
of
his
trail
commencing
on
the
DC.
- As
s75A
DCO:
cannot
call
alibi
evidence
without
leave
from
DC
after
the
criminal
matter
has
been
transferred
to
the
DC
- S65D(8)
CPO:
if
transferred
to
CFI,
the
same
warning
must
be
given
and
again
only
have
10
days
to
give
alibi
notice
before
trial
commences
without
needed
leave
from
court
- Alibi
notice:
contains
names
and
address
of
alibi
witness
to
be
called,
or
any
information
in
his
possession
which
might
be
of
material
assistance
to
finding
this
witness.
Terence Mak
SENTENCING:
Maximum
sentence
approach
- Legislations
in
HK
sets
a
maximum
for
the
offence
and
for
any
criminal
- The
maximum
should
usually
reserve
for
the
worst
offence
R
v
Pang
Chun
Wai
- Pleads
guilty
pre
trial
will
receive
1/3
discount
(HKSAR
v
Li
Yan)
- Used
tariff
sentencing
to
promote
consistent
approaches,
not
intended
to
be
straight
jacket
on
the
sentencing
judge
- But
prevent
Rogue
Sentencing-
R
v
Chan
Ping
Hung,
cannot
depart
for
no
good
reason
- S109A
CPO
16-21
years
olds
should
not
be
imprisoned
unless
no
appropriate
sentences
available,
or
they
committed
3rd
schedule
CPO
crimes.
- Should
always
consider
mitigating
circumstances
Starting
point
- Look
at
the
legislation
or
common
law,
- If
appropriate
HKSAR
v
Tam
Wai
Pio:
give
enhanced
penalty
if
aggravating
factors
(e.g.
organised
crime,
involved
minors
or
if
the
crime
is
prevalent)
Theft
s9
theft
ordinance
=
10
years
Robbery
s10
theft
ordinance
=
life
Burglary
s11
theft
ordinance
=
14
years
Aggravated
burglary
s12
theft
ordinance
=
life
Murder
and
manslaughter
s2,7
OAPO
=
life
Discount
to
sentencing
R
v
Byrne
for
guilty
plea:
1/3
- The
guilty
plea
is
taken
as
the
most
cogent
token
of
remorse
- The
accused
has
forfeited
chance
he
had
of
acquittal
- Saved
court
time
and
costs
- Accused
has
accepted
his
wrong
doings
- Judge
must
give
reason
for
discount
- The
discount
is
not
definite,
if
the
defendant
is
a
danger
to
the
public
or
absconded
from
the
proceedings
or
the
gravity
of
the
offence
is
so
grave
that
it
should
not
be
discounted,
the
judge
will
not
allow
the
discount
(Wong
Kwong
Fei)
MITIGATING
FACTORS
IN
pg
134
of
txt
book.
- Old
age,
youth
offender,
supergrass
(50%
off),
pregnancy,
mental
illness,
good
character,
general
humanitarian
reasons
AGGRAVATING
FACTORS
IN
pg
135-137
of
txt
book
- Abuse
of
public
trust,
fraud,
gravity
of
matter,
multiple
offence,
persistent
re
offending
- S27(1)
and
(11)
Organised
and
Serious
Crimes
Ordinances
permits
judge
of
the
DC
or
CFI
if
found
the
crime
to
be
prevalent
to
award
a
heavier
punishment
If
it
is
an
organised
crime
or
It
is
a
specified
crime
The
crime
is
prevalent
(crime
is
widespread
at
the
time,
used
as
a
deterrent)
Terence Mak
Yan
Wai
Ming-
court
can
treat
the
matter
as
an
aggravating
feature
and
impose
a
heavier
punishment
S56A
Dangerous
Drugs
Ordinance,
if
the
offence
is
a
conviction
of
drug
involving
employment
of
minors,
if
prevalent,
the
court
is
allowed
to
impose
enhanced
punishment.
Tariff
sentencing
- Need
to
look
at
tariff
approach:
sentence
should
be
proportional
to
the
gravity
of
the
offences
committed
- ROBBERY
CASES
WITH
DANGEROUS
WEAPON
Mo
Kwong
Sang:
In
imposing
sentence
little
account
should
be
given
to
the
previously
clear
record
of
anyone
who
takes
part
in
an
armed
robbery
The
appropriate
for
armed
robbery
if
displayed
weapon
is
5
years
If
invaded
private
premises
then
6
years
If
used
physical
violence
used
then
7
years
Aggravating
factors-entered
the
premises
at
night/
tortured
victim:
increase
sentence
- DRUG
TRAFFICKING
CASES
-
R
v
Lau
Tak
Ming
and
Ors
Up
to
10g=2-5
years
10-50g=5-8
years
50-200g=8-12
years
200-400g=12-15
years
400-600g=15-20
years
The
max
is
life
sentence
Judge
to
take
into
account
profit,
number,
content,
degree
of
involvement
and
previous
history
may
be
aggravating
factors.
Procedure
for
appeal
of
SENTENCE
to
the
Court
of
Appeal
s83G
CPO
- Appeal
from
DC
and
CFI
decisions
can
be
made
to
the
Court
of
Appeal.
- S83I(1)
must
gain
leave
from
CA
to
appeal
the
sentence
unless
trial
judge
has
given
a
certificate
of
fitness
for
appeal
- The
effect
of
appeal
is
to
have
the
CA
quash
the
original
sentence
and
substitute
a
new
sentence
- HOWEVER
CA
may
punish
unmeritorious
appeals
(HKSAR
v
Yau
Chun
Hung)
- Ground
of
appeal:
pg
178
Wrong
in
Law:
beyond
courts
jurisdiction
Wrong
in
Principle:
tariff
sentence
where
an
individualised
sentence
was
required
or
sentence
outside
normal
accepted
penalty
for
the
offence
Manifestly
excessive
Wrong
factual
premise
Circumstances
have
changed
significantly
since
the
sentence
was
imposed
PROCEDURE:
Send
to
the
CAs
registrar
a.
Notice
of
Appeal
Terence Mak
b.
c.
d.
e.
f.
g.
Voluntary
bill-
s24A
(1)(b)
CPO
a.k.a.
preferred
indictment
- Committal
without
committal
proceedings.
- Usually
used
when
the
MC
has
discharged
the
defendant
or
in
exceptional
circumstances,
after
the
MC
has
found
no
case
to
answer.
- The
procedure
may
be
used
where
the
SJ
wishes
to
file
a
new
indictment
without
undergoing
further
committal
proceedings
- It
may
also
be
used
if
accused
or
co
accused
are
already
committed
to
CFI
and
further
offenders
are
charged,
it
is
easier
for
them
to
be
jointly
tried.
- S81B
(3)
MO:
procedure
may
also
be
used
if
the
defendant
has
received
a
leave
from
CFI
to
withdraw
his
plea.
- Sought
by
the
Secretary
for
Justice
- S74
(3)
MO
the
court
must
order
the
committal
of
the
accused
to
stand
trial
without
further
inquiry
or
examination.
- A
voluntary
bill
must
follow
PD9.2
Voluntary
Bills
of
Indictment
whereby
the
SJ
need
to
show
to
the
High
Court
Judge
why
there
is
clearly
a
good
reason
to
depart
from
normal
procedure
and
whether
the
bill
is
required
in
the
interest
of
justice.
Suspended
Sentence
s109B-E
CPO
- R
v
Lam
Lai
Chun
A
sentence
may
be
suspended
if
considered
appropriate
for
the
court
to
order
a
sentence
of
imprisonment,
but
special
reasons
exists
to
allow
the
sentence
to
be
suspended
- A
term
of
imprisonment
of
up
to
two
years
(head
sentence)
may
be
ordered
to
be
suspended
for
one
to
three
years
(operational
period).
- HOWEVER,
Expected
offences
(offences
listed
in
schedule
3
of
CPO)
cannot
be
suspended.
- If
breached
terms
of
suspended
sentence,
will
be
punished
by
imprisonment
for
the
original
suspended
term
- The
operational
period
may
be
varied
if
he
is
not
imprisoned
on
his
breach.
Terence Mak
The
court
is
required
to
activate
the
suspended
sentence
unless
considers
it
unjust
to
do
so.
PART
B
QUESTIONS
Court
Transfers:
1)
Magistrate
to
District
- S88
(1)
MO-
transfer
is
instigated
by
an
application
from
the
Prosecution
on
behalf
of
the
SJ.
- Magistrate
has
no
discretion
to
refuse
transfer
of
an
indictable
offence
but
may
retain
a
summary
offence,
which
appears
on
the
same
charge
sheet,
to
be
determined
in
the
MC
- The
MC
must
sign
a
transfer
form
- He
may
not
transfer
a
matter
to
DC
on
his
own
volition
and
may
not
transfer
a
matter
determinable
only
in
the
CFI
to
the
DC
by
reason
of
Part
3
2nd
Schedule
MO
- S88
(3)
MO-
Summary
offence
to
be
dealt
with
by
the
MC
under
s65F
CPO
may
be
held
by
the
MC
and
not
transferred.
2)
Transfer
from
District
Court
- S77A
DCO
transfer
order
to
be
delivered
to
the
Court
after
the
charge
sheet
has
been
delivered
but
before
the
prosecutions
opening
speech.
- The
entire
proceedings
will
be
stayed
before
the
DC
- Application
made
by
way
of
motion
and
supported
by
affidavit
of
grounds
for
application.
- App
must
be
served
21
days
before
motion
hearing.
- Judge
will
make
the
transfer
order
if
in
the
interest
of
justice
and
to
make
order
as
to
cost.
- Judge
before
transfer
to
CFI
will
have
to
ask
the
accused
if
he
wants
a
MC
preliminary
inquiry.
- If
no
preliminary
inquiry;
judge
has
to
tell
accused
his
right
to
legal
aid,
give
alibi
warning
(s65D
CPO)
and
inform
their
right
to
apply
for
discharge
(s16
CPO)
- If
accused
is
not
in
court,
everything
has
to
be
sent
to
him
by
post
28
days
before
trial
date
(s77B
(6)
DCO).
i) Transfer
from
DC
to
MC
a. Judge
should
appoint
a
date
for
accused
to
appear
at
least
21
days
after
the
transfer
order
is
made
77A(8)
DCO
b. Judge
to
determine
if
bail
is
granted
on
making
transfer
order
c. Transfer
ends
DC
proceeding
and
is
not
subject
for
appeal
s77A(12)DCO
ii) Transfer
from
DC
to
CFI
a. A
sealed
copy
of
an
order
for
transferred
to
be
delivered
by
the
registrar
of
DC
to
registrar
of
CFI
within
21
days
of
order
Terence Mak
b. SJ
then
has
21
days
to
institute
proceedings,
if
after,
the
accused
can
apply
for
discharge
(s16
(1)(a)
CPO).
c. SJ
must
deliver
1)
a
copy
of
the
indictment,
copies
of
witness
statements
of
those
to
be
called
at
trial,
copies
of
all
documentary
and
a
list
of
prosecution
exhibits
(s10A(1)
CPO)
d. If
not
delivered
CFI
may
discharged
accused
under
s10B
CPO
a.k.a
an
acquittal
e. S16
CPO
discharge,
if
no
prima
facie
case
to
answer
to
or
no
proceedings
have
been
instituted
within
21
days
of
transfer
order
f. TEST:
could
a
reasonable
jury,
properly
directed,
convict
on
this
evidence?
g. BUT
SJ
can
appeal
to
discharge
3)
Transfer
from
CFI
- By
SJ
back
to
either
DC
or
MC
if
jurisdiction
allows
(s65F(1)
CPO)
- Unless
it
is
a
s77A
DC-CFI
transfer
- Entire
proceedings
will
be
stayed
at
the
CFI
when
application
is
made
- App
made
by
way
of
motion
supported
by
affidavit
setting
out
grounds
for
application
- Copy
of
both
served
on
accused
at
least
21
days
prior
to
the
date
named
for
the
hearing
(65F(2)CPO)
- If
judge
finds
it
is
in
the
interest
of
justice
he
will
allow
the
transfer
(s65F
(4)CPO)
and
make
order
regarding
cost
- When
order
made
judge
will
appoint
date
at
least
21
days
away,
give
alibi
warning
if
DC
and
grant
bail/remand
in
custody.
- Sealed
copy
of
order
will
be
transferred
to
the
registrar
of
the
DC
or
clerk
of
MC
Terence Mak
COMMITTALS
- Preliminary
Inquiry
or
Paper
Committal
(almost
always
paper
committal
in
HK
now)
- TEST:
s85(2)
CPO
whether
the
evidence
is
sufficient
to
put
the
defendant
upon
trial
for
an
indictable
offence,
or
if
the
evidence
given
raises
a
strong
or
probable
presumption
of
the
defendants
guilty
Direct
Committals
in
Cases
involving
Vulnerable
Witnesses
- S79F
CPO-
magistrate
may
order
that
the
accused
is
committed
to
the
CFI
for
trial
without
preliminary
inquiry.
- S79F
(1)
CPO-
Used
if
offence
committed
against
child
that
involves
sexual
abuse,
an
offence
of
cruelty
or
assault,
injury
or
threat
of
injury.
- Prosecutor
must
consider
the
test
for
committal
and
that
denial
of
a
preliminary
inquiry
is
necessary
to
protect
the
welfare
of
the
victim
- PROCEDURE:
s79F(3)
CPO
Prosecutor
will
need
to
serve
notice
of
transfer
certifying
his
opinion
and
an
affidavit
setting
out
the
reason
for
his
opinion
on
the
MC
before
the
defendant
had
the
chance
on
return
day
to
elect
for
preliminary
inquiry.
- Prior
to
which
the
prosecutor
will
have
served
to
MC
and
defendant
copies
of
documents
described
in
s80B(1)MO
- MC
has
no
discretion
to
refuse
and
has
to
inform
the
D
of
his
rights
- A
person
committed
this
way
is
deemed
to
have
been
committed
for
the
purposes
of
s24A
and
an
indictment
may
therefore
be
preferred
against
him
(voluntary
bill)
- But
the
accused
may
still
apply
s79G
for
the
case
to
be
dismissed.
Direct
Committals
in
cases
involving
complex
commercial
crimes
- S3
Complex
Commercial
Crimes
Ordinance-
SJ
can
apply
to
MC
for
transfer
of
an
indictable
offence
directly
without
allowing
accused
a
chance
for
preliminary
inquiry.
- Prosecution
must
show
a
case
of
Fraud
and
dishonesty
in
a
commercial
context
of
such
seriousness
and
complexity
that
it
should
be
committed
to
the
CFI
without
delay.
That
there
is
sufficient
evidence
to
meet
the
test
for
committal
S3
(2)
CCCO-
an
indictable
offence
alleged
on
the
same
charge
sheet
which
does
not
involve
complex
commercial
crime
may
also
be
transferred.
- Procedure:
An
order
of
transfer
will
stay
the
proceeding
before
the
MC
and
transmitted
to
the
CFI
- MC
to
inform
defendant
of
the
CCCO,
his
right
for
legal
aid,
an
alibi
warning
and
right
to
apply
for
discharge
(s22
CCCO,
similar
to
a
s16
discharge)
- Within
7
days
of
making
the
order
the
MC
must
deliver
it
to
the
Registrar
of
the
High
Court,
and
the
SJ
must
deliver
a
summary
of
evidence
to
both
registrar
and
the
accused
s6
CCCO.
Terence Mak
Wasted
Costs
Order
- S17
and
s18
Cost
in
Criminal
Cases
Ordinance
describes
two
wasted
costs
- Underlying
objective
to
conduct
litigation
effective
- S17)
those
unnecessarily
or
improperly
incurred
by
an
act
or
omission
by
or
on
behalf
of
the
other
party
to
the
proceedings,
the
court
may
order
the
wrong
doer
to
pay
the
costs
so
incurred
If
costs
follow
the
event
then
it
should
be
up
to
prosecution
to
prove
costs
not
properly
incurred,
should
not
be
included.
TONG
CUN
LIN-
conduct
of
acquitted
party
may
lead
to
denial
of
costs,
convicted
person
can
be
ordered
to
pay
costs
in
addition
to
sentence
Failure
to
serve
papers
on
time
Failure
to
notify
other
side
of
intention
to
adjourn
Failure
to
notify
guilty
plea
Failure
to
obtain
witness
summons
- s18)
where
without
reasonable
cause
leading
to
an
otherwise
avoidable
adjournment
court
may
order
a
legal
or
other
representative
to
pay
part
or
all
of
any
wasted
costs.
BUT
s2
wasted
cost
is
narrowly
defined
(e.g.
if
they
came
to
court
late
or
failed
to
attend)
And
consider
HKSAR
v
Ho
Hon
Chung
limited
powers
Courts
in
HK
consider
that
they
have
less
power
than
UK
S18
read
with
s2
provides
almost
worthless
sanction
as
it
is
rare
that
counsel
is
ever
late
and
rare
that
counsel
will
fail
to
attend
Plus
there
are
good
reasons
why
making
such
order
will
be
inappropriate.
Department
of
Justice
consultation
paper
interpreted
s2
to
be;
Any
costs
incurred
by
a
party
as
a
result
of
any
improper
or
unreasonable
act
or
omission
,of
any
undue
delay
or
any
other
misconduct
or
default
on
the
part
of
any
representative
or
which
in
the
light
of
any
such
act,
the
court
considers
it
unreasonable
to
expect
that
party
to
pay.
Amendments
are
now
made
according
to
consultation
paper
to
be
closer
to
UK
As
in
any
case
if
legal
aid
comes
in,
it
will
be
the
public
that
suffers.
An
order
for
wasted
costs
is
more
restricted
than
cost
order
in
s17
as
before
the
order
is
made,
the
representative
has
a
right
to
argue
against
the
order
A
government
lawyer
does
not
pay
these
costs
personally;
it
is
made
against
the
general
revenue.
Such
costs
cannot
be
taxed
so
the
court
should
specify
the
sum
awarded.
S25
CCCO:
If
transferred
to
CFI
without
committal
to
s4
CCCO,
a
judge
if
satisfied
that
a
party
has
incurred
costs
due
to
an
unnecessary
or
improper
act
or
omission,
then
the
innocent
party
may
be
awarded
costs.
Terence Mak
Appealing
Costs
awards:
S19
Cost
in
Criminal
Case
Ordinance:
any
party
can
appeal
costs
award.
It
is
possible
to
appeal
on
the
matter
of
the
costs
only.
- MC
appeals
to
CFI
- DC/CFI
appeals
to
CA
S19
(4)
CCCO:
On
appeal
the
judge
may
quash
the
costs
order
or
replace
it
with
another
order
- Both
the
prosecution
and
the
defendant
can
appeal
a
cost
order
and
the
cost
of
the
appeal
itself
is
at
the
discretion
of
the
court
appealed
to.
- S19
(5)
prosecution
cannot
be
awarded
the
costs
of
its
appeal
against
an
award
of
costs
made
to
a
defendant.
APPEAL
AGAINST
AN
ORDER
REFUSING
COSTS
- HKSAR
v
Coghlan,
court
ruled
that
magistrates
decision
to
not
award
costs
was
an
order
of
the
magistrate
and
therefore
is
subject
to
s113(1)
MO
- You
can
appeal
against
courts
decision
to
not
award
cost.
- The
section
states
that
the
magistrate
has
power
to
determine
in
summary
that
an
appeal
be
heard.
- This
was
followed
in
Tong
Cun
Lin
v
HKSAR,
where
an
appeal
of
judges
refusal
of
costs
was
heard
in
the
CFA.
- S31
HKCFA
ordinance
provides
for
a
right
to
appeal
to
a
court
from
any
final
decision
of
the
CA
or
from
any
decision
of
CFI
from
which
no
appeal
lies
to
the
CA.
DOCK
IDENTIFICATION
General
rule:
- Where
witnesses
are
invited
to
identify
the
defendant
for
the
first
time
when
the
defendant
is
in
the
dock
should
be
avoided
as
it
is
undesirable.
- Where
it
is
observed
that
the
person
does
not
know
the
accused
and
there
is
no
subsequent
identification
parade,
a
first
time
identification
in
Court
is
not
usually
permitted.
Absolute
no
dock
identifications:
- Where
original
observation
is
by
a
stranger
to
the
accused
without
a
prior
identity
parade
- Or
there
was
an
identity
parade
and
the
accused
was
not
picked
out
- Too
dangerous
for
the
accused
to
be
identified
- Or
evidence
is
obviously
suspect
and
of
little
value.
R
v
Wong
Tak
Leung:
EXCEPTIONS
- Where
there
is
no
need
for
an
identification
parade
because
the
parties
are
well
known
to
each
other
Terence Mak
-
-
-
-
-
Where
the
original
circumstances
of
the
identification
are
of
good
quality
and
there
is
unlikely
to
be
an
issue
as
to
identification
Where
the
dispute
about
identity
is
confined
to
two
or
three
people
and
there
is
no
point
in
an
identity
parade
Where
defendant
has
refused
to
take
part
in
and
identity
parade
(arrangements
should
be
made
for
a
non
consensual
identification)
R
v
Wong
George:
Where
the
original
identification
is
from
an
album
of
photographs
Where
not
practical
to
hold
identity
parade
as
defendant
is
too
distinct.
Fresh
evidence
on
appeal
S118
(1)(b)
MO
if
the
judge
thinks
additional
evidence
to
be
necessary
he
may
receive
such
evidence
just
like
the
powers
granted
under
s83V(1),
(6),
(10)
CPO.
- Fresh
evidence
may
be
admitted
on
appeal
if
necessary
or
expedient
in
the
interest
of
justice
to
do
so
- Unless
the
court
is
satisfied
that
the
evidence
would
not
afford
any
ground
for
allowing
the
appeal,
it
must
admit
the
fresh
evidence
where
it
appears
likely
to
be
credible
and
would
have
been
admissible
at
trial
on
an
issue
now
subject
to
appeal
and
the
Court
is
satisfied
that
there
is
a
reasonable
explanation
as
to
why
the
evidence
was
not
adduced
at
trial.
- PROCEDURE:
party
seeking
to
adduce
new
evidence:
file
notice
of
motion
and
supporting
affidavit
in
accordance
to
PD
3.2
Criminal
Appeals
to
the
CA
Direction
7(d).
- S83V(5):
A
sentence
may
not
be
increased
on
appeal
on
the
basis
of
any
fresh
evidence
admitted
on
appeal.