In law, there is in fact only one ground for presenting a petition for divorce, namely, that the marriage has broken down irretrievably.

Under section 11A of the Matrimonial Causes Ordinance(Cap. 179 of the Laws of Hong Kong) , except in the case of a Joint Application for divorce, the Court shall not hold the marriage to have broken down irretrievably unless the applicant for divorce (i.e. the petitioner) satisfies the Court of one or more of the following facts:

• that your spouse has committed adultery and you find it intolerable to live with your spouse;
• that your spouse has behaved in such a way that you cannot be reasonably expected to live with your spouse; Usually it is a series of misconducts or intolerable behaviour. However, a single incident of grave misconduct is enough;
• that you and your spouse have lived apart for a continuous period of at least 1 year before filing the petition and that your spouse consent to a divorce;
• that you and your spouse have lived apart for a continuous period of at least 2 years immediately before filing the petition for divorce (in such a case your spouse's consent to a divorce is not required);
• that your spouse has deserted you for a continuous period of at least 1 year immediately before filing the petition for divorce.

In the case of a Joint Application for divorce, both parties must prove either or both of the following two conditions to the Court (section 11B of the Matrimonial Causes Ordinance):

• that the parties to the marriage have lived apart for a continuous period of at least 1 year immediately preceding the making of the application; OR
• that not less than 1 year prior to the making of the application a written notice (Form 2E) signed by both parties of their intention to apply to the court to dissolve their marriage was given to the Court and that the notice was not subsequently withdrawn.

If there are children of the family who are under the age of 18, you must include in your petition your proposal as to their custody and access. If you wish to apply for ancillary relief such as maintenance, transfer of property, division of matrimonial assets, etc., you should also pray so in your petition.

Note: According to section 11C of the Matrimonial Causes Ordinance, a husband and wife shall be treated as "living apart" unless they are living with each other in the same household.

You are advised to consult a lawyer before submitting the relevant documents and attending hearings in the Family Court.

You need to go through the following stages:-

(Stage 1) Presenting a petition for divorce

(Stage 2) Serving (delivering) my petition to my spouse

(Stage 3) Fixing a court hearing date

(Stage 4) Decree Nisi – a tentative court order for divorce

(Stage 5) Final order for divorce

(Stage 1) Presenting a petition for divorce

To start divorce proceedings, you need to fill in:

In the case of a Joint Application (which means you and your spouse have agreed to apply together for a divorce), you need to fill in:

All forms you need are available from the Family Court Registry and may be completed in English or Chinese. When you have filled them in, take them to the Family Court Registry for filing, together with your original marriage certificate or a certified true copy. The filing fee is $630. You will be given a case number, which must be marked on any subsequently filed documents.

(Stage 2) Serving (delivering) my petition to my spouse

Now that you have started legal proceedings, you are known as the "petitioner" and your spouse is known as the "respondent". After filing your petition, you must arrange for a sealed copy ( “sealed” meaning a copy with the court’s chop on it) of the petition to be served on every other party to the proceedings, either by hand or by post. Note that you must not serve the petition on the respondent yourself. Instead you must use the services of a third person, or send the petition by post. If the petition fails to reach the respondent by hand or by post, the petition can be advertised in newspapers (with the approval of the Court) as a substitute way to notify the respondent.

In the case a Joint Application, there is no need to arrange for a sealed copy to be served on the other party.

(Stage 3) Fixing a court hearing date

After your petition has been served on the respondent you should next apply to the Registrar for directions to set down the case for trial (i.e. to fix a date for a court hearing), using an application form obtainable from the Family Court Registry. Your petition or application will be set down for hearing in one of the following lists on payment of the stated fee:

• Special Procedure List: $630
• Defended List: $1,045

Where a petition is concerned, before the case can be set down, the Registrar must be satisfied that the petition has been served on the respondent. This can be proved either by showing that the respondent has completed and returned a Form 4 (Acknowledgment of Service) to the Registrar, or by having the person who served the documents on the respondent file an affirmation confirming that the petition has been delivered to the respondent. Joint Applications will be set down provided that the relevant documents are in order.

The Registrar will make directions on the date, place and time of the trial and will notify you and the other parties.

(Stage 4) Decree Nisi – a tentative court order for divorce

Special Procedure List

If you have petitioned for divorce but the respondent does not file an answer in response to your petition, the petition will be set down in the Special Procedure List. Joint Applications also come under the Special Procedure List.

After the Registrar has given directions for trial, he will consider the evidence you have filed. If he is satisfied that you have proved the contents of the petition or application, he will make and file a certificate to that effect. Both parties will receive a copy, endorsed with the terms they have agreed. There is no need for either party to attend the hearing. The Court will grant a decree nisi (a tentative court order) dissolving the marriage.

Defended List

Where a petition for divorce is made and the respondent has filed an answer, the petition will be set down in the Defended List. In such cases, the Court will either grant a decree nisi dissolving the marriage, or will dismiss the petition if insufficient evidence is found. In the case of a petition listed on the Defended List, either or both of the parties may need to attend the court hearing.

In the event of court granting the decree of divorce, if the question of child custody and access arises, or if there are applications for ancillary relief by either party, the court will adjourn these matters to Chambers with directions for social investigations report and filing of affidavit of means by the parties where appropriate.

(Stage 5) Final order for divorce

6 weeks after the Court has granted a decree nisi, you can apply for your decree to be made absolute (a final order for divorce) by sending a completed "Notice of Application for Decree Nisi to be made Absolute" to the Court, using Form 5 (for a petition) or Form 5A (for a joint application).

If there are children of the marriage, the decree nisi will not be made absolute until the Court declares that it is satisfied with the arrangements made for them. The Registrar will issue a Certificate of Decree Absolute to each party if the registrar is satisfied that the statutory requirements have been complied with.

(For more details of the above procedures, you may also visit the website of the Judiciary of Hong Kong on “How to apply for a divorce”.)

You may consider making use of the following alternatives:-

(i) Deed of Separation – It refers to a separation agreement that can be made between the two parties by themselves. The agreement can specify a period of separation, and what the parties will do with their children (if any) and how their children’s and each other’s maintenance will be provided. It is recommended that a lawyer be consulted before such an agreement is made.

A deed of separation is appropriate where the parties are in a harmonious relationship and there is a good chance that each party will agree to be bound by the terms.

But the downsides of this option are:

• If any party has breached the term(s) of the Deed, the other party can only sue the breaching party for breach of contract. The enforcement of it is different from the enforcement of a court order made in divorce or judicial separation proceedings.
• Legal Aid is not available for negotiating a deed of separation.
• In situations where proceedings for divorce or judicial separation are issued subsequently, the existence of a deed of separation does not prevent the Court from making a different order even though the deed embodies terms to the effect that the parties intended it to be final: because the law provides that any term in a deed that restricts the right of any party to apply to the Court in future proceedings shall be void. But in future proceedings the Court will usually be inclined to uphold the terms of the deed (assuming it was made voluntarily and each party had the opportunity to seek independent legal advice) unless there is very good reason to do otherwise.

(ii) Separation Order – Under some circumstances, and if no agreement can be reached, one party can apply to the District Court for a separation order together with maintenance orders (e.g. Either party may be ordered by the Court to give financial support to the other party, and/or the children, for the costs of living.) provided that he or she has not committed adultery. In the case of a wife, she may apply where the husband has been convicted of having assaulted her, or has deserted her, or is guilty of persistent cruelty to her, or her infant children, or has knowingly transmitted venereal disease to her, or has compelled her to be a prostitute, or is a habitual drunkard or drug addict. In the case of a husband, he may apply where the wife has been guilty of persistent cruelty to his children or is a habitual drunkard or drug addict.

If the Court finds that there are sufficient grounds, it may order that the parties be separated, i.e. they need not live together any more although they are still legally husband and wife (they are not free to re-marry at this stage). The Court may also make orders relating to the custody of the children and the maintenance of the other spouse and of the children.

(iii) Judicial Separation – A spouse or couple may apply to the District Court for a judicial separation, which is a legal process through which parties obtain formal recognition of their separation. The minimum 1 year rule of marriage does not apply to judicial separation. However, to get a judicial separation, the applicant has to prove basically the same facts as they would in a divorce. [see Part IV on Divorce] The effect of a judicial separation is the same as a separation order, i.e. the parties are still husband and wife but they need not cohabit. Parties who are judicially separated are not free to re-marry. The Decree is only granted subject to the requirement that satisfactory arrangements have been made for the welfare of any children.

There are several possible reasons why a couple would apply for judicial separation instead of divorce, for example:

• when one or both parties are opposed to divorce on either religious or moral grounds;
• one party does not wish to give the other the ability to remarry;
• when the parties have been married for less than 1 year and are therefore unable to apply for divorce;
• in order to prevent the loss of benefits available only to a spouse.

The existence of a judicial separation decree does not preclude either party from applying for divorce subsequently.

(iv) Mediation – Family mediation is an alternative way to settle family dispute other than going to Court. It has been increasingly used by separating or divorcing couples to settle issues arising from marriage breakdown.

What is "family mediation"?

In practical terms, family mediation is a problem-solving process designed to help separating/divorcing couples reach their own mutually acceptable agreements regarding on-going arrangements for their children and/or the resolution of financial matters.

It is a voluntary process in which a trained, impartial third person (the mediator) can assist both parties to communicate and negotiate issues in a confidential setting.

In a family mediation session, the mediator will help you to:

• discuss and decide which areas are in dispute;
• explore each party's needs and interests;
• expand options and select the most suitable solution;
• draw up your agreement in detail setting out how you have agreed to solve each problem.

Mediators? Who are they?

Mediators come from various professional backgrounds. They usually have qualifications in law, psychology, social work or social science. They are specially trained and have to meet accreditation requirements covering knowledge and skills in negotiation and dispute resolution. They are also required to abide by a Code of Practice.

Mediators are neutral. They

• do not take sides with either party;
• do not make decisions for parties;
• do not provide legal advice. Parties will be encouraged to consult their own lawyers for legal advice.
• do not offer counselling or therapy but may suggest such services;
• suggest new avenues to explore;
• help parties assess their own case realistically, assess the feasibility of the decisions; and
• help parties to explore settlement proposals in depth and find the solutions.

The law tries to stop traders from avoiding their responsibilities to you if you are injured or your property is lost or damaged because those traders failed to take proper care. They cannot hide behind cleverly worded clauses or a few lines of small print in a contract. They can still be liable to pay compensation.

A) Unreasonable Exemption Clauses

An exemption clause is used to avoid liability when things go wrong. Such a clause has to be "reasonable" before a trader can rely on it to avoid a claim brought against him/her by a consumer. In other words, the relevant exemption clause may have no effect if it is proved to be unreasonable .

The reasonableness test is satisfied if the judge concludes that the relevant exemption clause was fair and reasonable having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the agreement was made (section 3(1) of the Control of Exemption Clauses Ordinance, Cap. 71 of the laws of Hong Kong).

In considering what is "reasonable", schedule 2 of the Control of Exemption Clauses Ordinance provides the following guidelines:

• the strength of the bargaining positions of the parties relative to each other, taking into account (among other things) alternative means by which the customer's requirements could have been met; whether the customer received an inducement to agree to the term, or in accepting it had an opportunity of entering into a similar contract with other persons, but without having to accept a similar term;
• whether the customer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties);
• where the term excludes or restricts any relevant liability if some condition is not complied with, whether it was reasonable at the time of the contract to expect that compliance with that condition would be practicable;
• whether the goods were manufactured, processed or adapted to the special order of the customer.

Under normal circumstances, traders cannot escape from liability arising from the death or personal injury of a consumer if the incident happened due to the traders' negligence (for legal proceedings relating to person injury or death, please click here).

Example

If a restaurant loses or damages property that you deposited in their cloakroom, they must prove that they have already taken reasonable care of it. They cannot simply put up notices saying something like "The management does not accept any responsibility... " and then expect to escape from any sort of obligation to look after your property. You can challenge notices like that, if you think that such notices are unreasonable. It rests with the Court to make the final decision.

B) Unfair Contract Terms

The Unconscionable Contracts Ordinance (Cap. 458) only applies to a contract for the sale of goods or supply of services in which one of the contracting parties is dealing as a consumer. If the Court finds out that the contract or any part thereof was unconscionable (unfair/not sensible) in circumstances relating to the contract at the time when it was made, the Court would have the jurisdiction under section 5 of the Unconscionable Contracts Ordinance to refuse to enforce the contract, or to enforce the remainder of the contract without the unconscionable part, or to limit the application of, or to revise or alter, any unconscionable part so as to avoid any unconscionable result.

When deciding whether or not the contract or any part of is unconscionable, the Court will consider the following points according to section 6 of the Unconscionable Contracts Ordinance:

• the relative strengths of the bargaining positions of the consumer and the other party;
• whether, as a result of conduct engaged in by the other party, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the other party;
• whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services;
• whether any undue (inappropriate) influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the other party or a person acting on behalf of the other party in relation to the supply or possible supply of the goods or services; and
• the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent goods or services from a person other than the other party.

Example

A case about the sale of a hotel/resort service membership was heard in the Small Claims Tribunal in 2002 in which an "unconscionable" consumer contract was cancelled by the Tribunal. The Adjudicator (judge sitting at the said Tribunal) gave the following reasons to support the judgment:

• the claimants (2 consumers) were in a week bargaining position as they had to sign a contract already prepared in a standard form provided by the defendant (a resort company);
• the claimants did not have sufficient time to scrutinize the contract and could not seek independent advice before signing the contract;
• the claimants suffered a "special disadvantage" because the defendant could not prove that the company owned the resort (or had the right to occupy it) when the contract was made;
• the claimants could not use the resort before the membership fee ($115,500 to be paid by instalments) was paid up in full, and in addition must pay an annual management fee;
• inappropriate influence or pressure was exerted on the claimants before the contract was made.

You can read the judgment of this case (in Chinese only) from the Judiciary webpage.

If a tenant fails to pay rent, then the following measures are usually available to the landlord.

a) Action for the recovery of outstanding rent

If landlords intend only to recover the outstanding rent but not to regain possession of the properties, then they may make their claim for rent arrears at one of the followings.

- The Small Claims Tribunal: for claims of $75,000 or less (To get more information about how to prepare for the trial (from both the Claimant's and the Defendant's perspective), please click here; 
- The District Court: for claims that exceed $75,000 but do not exceed $3,000,000;
- The Court of First Instance of the High Court, which has unlimited jurisdiction.

Landlords of domestic properties domestic property, should ensure that they have submitted a Notice of New Letting or Renewal Agreement (Form CR109) to the Commissioner of Rating and Valuation for endorsement within one month of the execution of the tenancy document. Landlords of domestic properties are not entitled to maintain legal action to recover rent under tenancy documents if the Commissioner does not endorse the form. However, landlords who do not submit the form within the one month period can do so at any time after paying a fee of $310.

b) Action for forfeiture (to get back the property) and to recover outstanding rent

In the case of serious default on payment of rent or in the event that landlords believe that their tenants have been absconded or will not be able to pay the rent for the remaining term of the tenancy, then they will probably want to get back the property and recover the rent in arrears. In such circumstances, the landlords are said to be exercising their right of forfeiture and may file their claims at:

- the Lands Tribunal; 
- the District Court if the outstanding rent does not exceed $3,000,000 and the rateable value of the property does not exceed $320,000; or
- the Court of First Instance of the High Court for outstanding rent of any amount.

The landlord, if successful in obtaining a judgment against the tenant, will be able to apply to the tribunal/appropriate court for a Writ of Possession. Upon the issue of the Writ of Possession, the court bailiff will recover the possession of the property on the landlord’s behalf.

Jurisdiction of the High Court

It should be noted that although the High Court has unlimited jurisdiction to handle any of the above claims, it normally will not entertain a claim that falls within the jurisdiction of the District Court or the Lands Tribunal.

Application for Summary Judgment for possession/Interim payment

After commencement of proceedings, it may take some time to wait for trial to take place at Court (especially for the District Court/Court of First Instance). However, for many cases, there may be procedure for landlords to recover possession/rent in a more speedy fashion known as “summary judgment” or “interim payment” if the landlord is satisfied that there is no arguable defence on the part of the tenant to resist an application for an order of repossession and/or payment of outstanding rent.

You must seek legal advice on any grounds for obtaining a summary judgment or an interim payment before you make the relevant application to court.

c) Action for distress

Distress means the seizure, detention and sale of movable chattels/goods found in the rented property to satisfy the rent arrears pursuant to a warrant issued by the District Court upon application by the landlord. Due to the nature of distress, it is mostly used in cases in which a tenant is still operating a business at the rented property. Part III of the Landlord and Tenant (Consolidation) Ordinance governs the procedures and formalities for applications for distress.

The application for distress is an ex-parte application (by one party only) to the District Court, meaning that the tenant will not have the chance to appear before the judge to make any submission (or objection). This is to avoid the tenant knowing of the application and dissipating the available assets.

The landlord must file an affidavit/affirmation to support the application in a prescribed form. If the Court accepts the landlord's application, then a warrant of distress is issued. The bailiff then enters the property, seizes the movable chattels/goods found inside and in the apparent possession of the tenant, and sells the chattels/goods to satisfy the rent in arrears.

Note that the bailiff cannot seize land fixtures (e.g. air-conditioning machines and, some built-in appliances), things in use, tools and implements or the goods which is apparently owned by parties other than the tenant. The goods as seized will be impounded by the bailiff until the rent is paid or being sold by an auctioneer as the Court may direct.

As distress is complicated both in terms of procedures and legality, it is usually done with the assistance of legal professionals.

With reference to section 9 of the Employment Ordinance, employers may summarily dismiss their employees without advance notice or wages in lieu of notice if their employees:

a. wilfully disobey any lawful and reasonable orders;
b. are guilty of misconduct;
c. are guilty of fraud or dishonesty; or
d. are habitually neglectful in their duties.

It should be noted that taking part in a strike may not be a lawful reason for summary dismissal by the employers.

NOTE: Summary dismissal is a serious disciplinary action. It only applies to cases in which employees have committed very serious misconduct or have failed to improve themselves after an employer’s repeated warnings.

Example of employees' serious misconduct or dishonesty can be found in a High Court case (Chan Kan Ip Philip v Kone Elevators International ( China ) Limited). In this case, a company manager had made wrongful claim to recover personal entertainment expenses as company expenses. The Court ruled that such dishonesty could justify summary dismissal.

If you have evidence to justify that your sales executive has sent client information to a rival company (which can be considered as misconduct or dishonesty), then you can summarily dismiss him without giving him advance notice or wages in lieu of notice.

Due to the complexity of criminal procedures and the risk of conviction, you are strongly recommended to appoint a lawyer to represent you.

The following chart briefly sets out normal court procedure in a criminal case:

First Hearing

No matter how serious the offence is, the accused person will in general be brought to a Magistrates’ Court to attend the first hearing. If the prosecution needs further time to investigate or seek legal advice, or if the prosecution decides to transfer the case for trial in the District Court or the Court of First Instance of the High Court, then the prosecutor will seek an adjournment (to postpone the hearing). Otherwise, the charge is read to the accused person at the first hearing, who is then asked to plead guilty or not guilty to the offence. If the accused person pleads not guilty, then the case will usually be adjourned to another date for trial.

Upon adjournment of the case, the accused person may apply to the Magistrate for bail. Bail should generally be granted by the Magistrate unless there is substantial ground for believing that the accused will fail to appear at the next scheduled hearing, or commit other offences whilst on bail, or interfere with witnesses or the investigation. The accused person has the right to submit an application for bail on further appearances before the Magistrate if bail was refused at the previous hearing(s). He may also apply to the Court of First Instance of the High Court for bail upon refusal by the Magistrate. For more details on this matter, please refer to section 9Dand section 9G of the Criminal Procedure Ordinance.

Plea of Guilty (the accused admits guilt)

The accused person who pleads guilty is not yet convicted of the offence until he is formally convicted by the Court. On a plea of guilty, the brief facts of the case on which the accused is to be convicted will be read in open court. If the accused agrees with the brief facts, then the Court will formally convict him (unless the Court is not satisfied that the agreed brief facts show the commission of the offence). Where the accused does not agree with the prosecution's brief facts (or part of them), the Court will hear evidence from the prosecution and the accused to decide the facts. Such a hearing is called a “Newton Hearing”. After the Court has made a decision on the facts, it will formally convict the accused (unless the Court is not satisfied that the decided facts show the commission of the offence).

Upon conviction, the prosecution will inform the Court the relevant background of the accused person in particular whether he has any previous criminal records. The Court will then allow the accused person or his lawyer to tell the Court matters which may persuade the Court to impose a more lenient sentence. This process is called a plea in mitigation . The Court may then pass a sentence (i.e. decide the penalty) on the accused person or it may call for some reports (e.g. probation report, Community Service Order report or psychiatric report etc) before it decides the proper sentence.

Plea of Not Guilty (the accused does not admit guilt)

On a plea of not guilty, the case will be adjourned for trial. A number of procedures may take place before the trial e.g. for application for bail, for amendment to the charge, pre-trial review, etc.

Well in advance of the trial, the prosecution must provide the accused person (or his lawyer) with all documents and materials which are or possibly relevant to the case, whether they are for or against the prosecution's case. In general, these materials include all the written statements and criminal records of the prosecution witnesses; all written statements given by other persons to the law enforcement agencies whom the prosecution does not intend to call as a witness at the trial; all materials which the prosecution intends to rely on at the trial; and all materials which the prosecution does not intend to use but which may assist the accused in his defence. The prosecution however has no duty to disclose materials which only affect the credibility of a defence witness (e.g. Immigration records which show that a defence witness was in Macau at the time when he said he met the accused person in Hong Kong). Any failure by the prosecution to provide the accused with the relevant materials before trial may be a valid ground of appeal against any conviction.

Trial

The prosecution opens its case and adduces/submits evidence. The prosecutor will call witnesses one by one to give evidence to establish the offence. Each witness will first be questioned by the prosecutor (examination-in-chief by the prosecution). The witness will then be questioned by the accused or his lawyer (cross-examination by the defence). If necessary, that witness may be re-examined by the prosecutor afterwards. After all the prosecution witnesses have given evidence, the prosecution closes its case.

The defence may then make a submission of "no case to answer" , which is an argument that the prosecution's evidence is insufficient to make out a prima facie case. If this submission is accepted by the Court, the accused is acquitted . The accused may then apply to the Court to recover his legal costs from the prosecution.

If the Court finds that there is a "case to answer" (i.e. the prosecutor has established a prima facie case), the defence will open its case and call its witnesses. The accused can:

a) give evidence personally and call other witnesses;
b) choose not to give evidence personally but only call other witnesses to give evidence; OR
c) choose to do neither of the above.

The accused person usually needs to decide whether or not to give evidence personally before any defence witness is called. This is because the accused is generally required to testify before other defence witnesses.

Where witnesses are called by the defence, the defence witnesses are examined in chief by the defence. They may then be cross-examined by the prosecution, and may be re-examined by the defence. After all the defence witnesses have given their evidence, the defence closes its case.

Other than those witnesses called by the prosecution or the defence, the Court has the discretion to order that someone must be called as an additional witness. However, this discretion is rarely exercised.

Closing Submissions and Verdict

The trial will then proceed to the closing speeches by both the prosecution and the defence, (although the prosecution often does not make a closing speech) after which the Court will deliver its verdict (i.e. decision). The Court will either convict or acquit the accused and give reasons for its decision. In general, the reasons given by the Magistrate will be rather brief at this stage. The Magistrate will provide fuller reasons with more detailed analysis at a later stage if the accused appeals against the conviction. If the accused is acquitted, he may apply to the Court to recover his legal costs from the prosecution. If the accused is convicted, the case will proceed to mitigation and sentencing.

Hearings in District Court or Court of First Instance of the High Court

The trial process in the District Court is similar to that in the Magistrates' Courts. However, the trial in the Court of First Instance of the High Court is conducted by the Judge sitting together with the jury , and so there are some differences in the process. If the accused does not admit guilt, a jury will be empanelled. The members of the jury are ordinary citizens in Hong Kong selected by lottery from the jury pool. Both the prosecution and the defence may object to any member of the jury pool becoming empanelled as a juror. The defence can object to no more than five potential jurors without giving reasons and can object to any additional ones if valid reasons are given. Normally seven jurors are selected, although for long or complex trials a jury of nine members can be formed.

The trial then proceeds in similar manner as in the Magistrates' Court or District Court. The jury is responsible for deciding whether or not the accused person is guilty , while the Judge determines the law and procedures. Hence, the Judge of the Court of First Instance will regulate the conduct of the trial procedures and the jury will general sit there listening attentively to the evidence given by the witnesses (through examination-in-chief, cross-examination, and re-examination conducted by the prosecution and the defence). Sometimes the Judge will ask the jury to leave the courtroom if there are any legal issues or arguments that need to be resolved without the present of the jury (e.g. whether the jury should be allowed to hear certain evidence, or whether the defence's submission of no case to answer is successful).

After closing speeches have been made to the jury by the prosecution and the defence, the Judge will sum up the case to the jury (summarising the evidence and the arguments made by both sides). The Judge will usually explain to the jury what the prosecution must establish before the accused can be convicted. But in general the Judge must leave it for the jury to decide who is telling the truth and whether the accused is guilty of the offence. In certain exceptional cases, the Judge may direct the jury to acquit the accused if he is satisfied that it is not safe to convict the accused based on the available evidence.

The jury will then retire to consider its verdict (i.e. to decide whether or not the accused is guilty of the offence). Based on the verdict of the jury, the Judge will formally convict or acquit the accused. If the accused is acquitted, he may apply to the Court to recover his legal costs from the prosecution. If the accused is convicted, the case will proceed to mitigation and sentencing. It is the Judge instead of the jury who is responsible for sentencing the convicted offender.

Once the jury has reached its verdict, the foreman of the jury will inform the usher, who will inform the Court. The parties will be called back to Court, and the Court clerk will ask the foreman of the jury to state the verdict in open court.

Juries must reach a majority verdict as to whether the accused is or is not guilty of the offence. In a jury of seven members, the Court will accept a unanimous verdict, a verdict of 6 – 1 or 5 – 2. If the jury cannot reach a majority verdict, the Judge may ask them to retire again and give them more time to discuss, but the Judge must not put pressure on them to reach a majority verdict. If at the end the jury still cannot reach a majority verdict, the Judge will have to dismiss the jury and decide whether or not to order a re-trial before another panel of jury.

For more details about the duty and eligibility of jurors, please go the Judiciary webpage.

Ask your agent or the vendor whether there is anything that may lower the value of the flat, or better still, try to obtain a copy of the land search record about the flat.

What is a land search?

A land search is a search of the Government Land Registry to obtain the history of the flat and other relevant information. For example, it will show you things like:

1. the present owner of the flat and all the previous owners of the flat;
2. details of the flat (e.g. the address and government lease term of the relevant land lot);
3. whether there is any government order in respect of the flat that has not yet been obeyed (e.g. a repairing order, or an order to demolish an unauthorized structure);
4. whether there is any mortgage not yet discharged;
5. whether there is any lawsuit concerning the flat (e.g. a bank suing the owner for some outstanding mortgage repayments).

Note:
The land search record only shows you general information plus an outline of any encumbrances (see below) about a property. It would be helpful if you can obtain the record before you sign the provisional agreement. However, you cannot rely on such record to complete the whole transaction without the assistance of a solicitor.

Encumbrance is anything that can (i) reduce the value of a flat or (ii) obstruct the owner from selling a flat. Examples of encumbrances are: mortgages, a covenant (a formal agreement or promise) restricting the use of the flat, or charging orders imposed by the government or by an individual. Your solicitor must inform you (in any event not later than the property hand over date) about any encumbrances found in the land search record or the title deeds.

For more information about land searches, please visit the Land Registry's webpage.