What is criminal litigation? Criminal litigation is often referred to as criminal procedure in Hong Kong. It is the process in which a criminal case proceeds within the criminal justice system in Hong Kong. It involves the charge in which an individual is accused of, bail, plea, trial, sentencing, the court in which the case will be heard in and so on.
Criminal offences can be classed as summary, either way or indictable only. This classification of a particular offence will determine how a case can be processed within the criminal justice system. For example indictable offences such as a section 19 'wounding or inflicting grevious bodily harm offence under 'Cap. 212 Offences Against the Person Ordinance' is an offence which is triable on indictment and shall be liable to imprisonment of 3 years. A section 17 'shooting or attempting to shoot, or wounding or striking with intent to do grievous bodily harm' offence is triable upon indictment and shall be liable to imprisonment for life. The two offences, however, are processed differently within the criminal justice system. The section 17 offence cannot be heard by a magistrate as it is an offence listed under Schedule 2, part III of the Magistrates Ordinance.
The difference lies in which court they will be heard in. The prosecution of all indictable offences commence in the Magistrates’ Courts, however, the Secretary for Justice may apply to have a case transferred to the District Court or committed to the Court of First Instance of the High Court depending on the seriousness of a case. The Magistrates Ordinance, Schedule 2 provides information as to whether the case can be heard by a magistrate. It sets out the jurisdiction of the Magistrates' Court in criminal cases.
"Admitted to bail" means the release by a court of an accused person from detention on his undertaking that he shall surrender to custody on the day that the court may appoint.
The presumption that bail should be granted arises from the notion that a person is innocent until proven guilty.
If police bail is given, it usually occurs just after the accused is taken to the police station and charged, it is often conditional upon the appearance of the accused the following day before either a magistrate, or at the police station to enable the investigations to continue.
Magistrates' bail is a type of bail granted by the magistrates within 48 hours of being charged and it is the most common and important kind of bail.
An application for bail is made on oral submissions and information provided by the accused including documents and letters provided for the magistrates or judge by the accused and the prosecutor.
Criminal trials proceed for hearing and determination either summarily (before a magistrate or in the District Court), or upon indictment (before a judge and jury in the Court of First Instance).
The defendant is taken to the Principal Magistrate (Court No. 1 or the "plea" court) where a plea is taken by the defendant.
The magistrate then finds out the language or dialect the defendant understands and arranges for a court interpreter. The charge will be read to the defendant by the court interpreter. The defendant will be asked whether the charge is understood. If the defendant confirms it is, the next question is whether the plea is guilty or not guilty. If a plea of not guilty is entered, the magistrate will fix a date for trial.
The prosecution may apply to transfer the charge from the magistracy to the District Court if the offence is serious and likely to attract a sentence that exceeds the magistrate's jurisdiction.
The procedure for criminal trials is as follows:
The case is called and the judge asks what dialect the defendant understands and ensures that the correct interpreter is available.
The interpreter will then take oath;
The charge is read to the defendant and he is asked if it is understood. If so, the court asks how the defendant pleads to the charge. If the plea is not guilty, the prosecution will open the case and call evidence.
The witnesses for the prosecution are called into court to give evidence, each witness takes oath and is examined. When the last prosecution witness has finished giving evidence, the prosecution closes its case. At this stage, if the court rules there is no case to answer, the defendant is discharged, otherwise the defence shall call the defendant and witnesses. The defendant is examined and the defence witnesses are called into court to give evidence after which the defence closes its case.
The court hears any final address for the prosecution and then final addresses for the defence.
The court will then return its verdict.