1. Bail pending trial
Principles
A Magistrate has the authority to grant bail in various situations, including during transfer/committal proceedings. On the other hand, a District Court Judge can only grant bail if the case will be heard in the District Court.
The Court of First Instance, similar to the District Court, does not have inherent power to grant bail, and any bail granted must be based on statutory provisions. The Court of First Instance can grant bail in specific situations, such as:
- when the case will be heard at the same Court (section 9D of the Criminal Procedure Ordinance);
- when the lower Courts have refused or granted bail with certain conditions that the defendant wants to change (section 9J of the Criminal Procedure Ordinance); or
- when there is a review of the admission to bail from the Secretary of Justice (section 9H of the Criminal Procedure Ordinance).
When granting bail, the court may impose the conditions listed in section 9D(3) of the Criminal Procedure Ordinance. These conditions include paying a cash amount, providing a surety, surrendering travel documents, undertaking not to leave Hong Kong, residing at a specific place, being subject to a curfew, reporting to the police station at regular time intervals, and not interfering with prosecution witnesses. Meanwhile, it is rare for the Courts to grant bail unconditionally in practice.
Procedures
The issue of bail at the Magistrates’ Court level usually occurs at the defendant’s first appearance at the Magistrates’ Court. The defendant him/herself or his/her legal representative would orally make a bail application to the Magistrate. After hearing the application, the Magistrate will make an order to grant bail with the corresponding bail conditions or refuse bail.
Additionally, under section 9J of the Criminal Procedure Ordinance, bail conditions can be changed or varied by applying to a Judge sitting at the Court of First Instance.