A. Criminal Records
The most serious criminal offences in Hong Kong, such as murder, manslaughter and rape are triable only upon indictment before a judge and jury in the Court of First Instance. Some offences, such as theft and robbery, are triable in either the Court of First Instance, the District Court or the Magistrates’ Courts. Where an offence can be tried in any one of the three, the prosecution decides which court will deal with the offence based upon the likely sentence upon conviction after trial. If the likely sentence will not exceed two years’ imprisonment, the case will be dealt with in the Magistrates’ Courts. If the likely sentence will be between two and seven years’ imprisonment, the case will be dealt with in the District Court. If the likely sentence will exceed seven years’ imprisonment, the case will be dealt with in the Court of First Instance. Some offences, such as resisting public officers in the lawful execution of their duty, contrary to section 23 of the Summary Offences Ordinance (Cap. 228), can be tried summarily only in a Magistrates’ Court. The common characteristic of offences which can be tried only before a magistrate is that the Ordinance creating the offence imposes a maximum penalty of two years’ imprisonment.
Criminal prosecutions in Hong Kong start with an arrest, followed by a charge or by the issue of a summons. More serious criminal offences, such as theft, start with an arrest, followed by a charge. Less serious criminal offences, such as careless driving, contrary to section 38 of the Road Traffic Ordinance (Cap. 374), which carries a maximum imprisonment of six months, normally start with the issue of a summons.
Whether a criminal prosecution starts with an arrest followed by a charge or by the issue of a summons, the result is the same. The convicted person, whether on a guilty plea or after trial, will have a criminal record. It does not matter what penalty is imposed by the convicting court. A criminal conviction can be quashed on appeal. A conviction which is not quashed on appeal cannot be erased. Traditionally, the criminal record remains with the offender for life.