Trial of facts

Trial of facts

If the accused is judged to be unfit to plead and stand trial, the trial will not proceed (or if it has begun, it will be stopped). The jury will have to instead determine whether or not it is satisfied that the accused did the act or made the omission with which he/she is charged – or in other words, the ‘trial of facts’ procedure (Criminal Procedure Ordinance, section 75A).

Under this procedure, only the act and not the mental state of the accused needs to be proved (see further R v Antoine (2001)). This means that the accused may not be able to rely on some defences that requires consideration of what the accused was thinking at the time (such as accident, mistake or self-defence). If the accused wants to rely on these defences, there will need to be some objective evidence from people other than the accused. If the jury is satisfied that the accused did commit the acts of the offence which he had been charged, they should make this finding. Otherwise, the jury must return a verdict of acquittal.

According to the case of HKSAR v Ng Mei Lan (2009), section 75A of the Criminal Procedure Ordinance does not require a new jury to be empanelled for the trial of facts procedure. The same jury that considered the accused’s fitness to plead also determines whether the accused committed the act or omission in question.