C. I will attend a court hearing soon. What is the procedure during a criminal hearing?
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 the court procedures normally involved in a criminal case:
- First Hearing
Notwithstanding the seriousness of the offence charged, an accused person will in general be brought to a Magistrates’ Court to attend the first hearing. The prosecutor will seek an adjournment (i.e. to postpone the 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. Otherwise, the charge will be read to the accused person at the first hearing, who will then be asked to either 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.
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. This is premised on the principle that bail is an inherent right and not a privilege, as provided in Article 28 of the Basic Law and enshrined by Article 5 of the Hong Kong Bill of Rights Ordinance (Cap. 383). 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 9D and section 9G of the Criminal Procedure Ordinance (Cap. 221).
2. 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 both the prosecution and the accused to decide on the facts – this is known as 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 record. 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. Upon submissions by both the prosecution and the accused person, the Court may then pass a sentence (i.e. decide the penalty) on the accused person or it may call for some reports if necessary (e.g. probation report, Community Service Order report, psychiatric report, etc.) before it proceeds to decide on the proper sentence.
a. What are the effects on the level of sentence if the accused pleaded guilty?
3. Plea of not guilty (the accused does not admit guilt)
On a plea of not guilty, the case will be adjourned for trial. Several 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 should provide the accused person (or his legal representative), upon the request by the defence, with all documents and materials which are or are 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.
4. Pre-Trial Review (PTR)
The purpose of PTR is to ensure that issues which need to be dealt with prior to trial are resolved expeditiously so as to enable the trial to proceed on the date fixed for trial. Parties are normally directed to file a joint PTR questionnaire before the hearing. Trial Counsel are expected to appear at the PTR.
Pre-trial reviews may be ordered for trials in the Magistrates’ Courts and are often ordered for trials in the District Court. After a case is committed to the High Court for trial or sentence, the usual practice is for a Case Management Hearing and Pre-trial Review hearing to be fixed before the trial proper.
During the PTR, which is held in chambers, the Trial Judge may give additional directions to ensure a fair and efficient trial.
During the review, Trial Counsel are expected to be ready to report to the court on matters including pleas, additional evidence, admitted facts, witnesses, expert testimony, trial length estimates, and any legal issues or authorities to be relied upon.
For sexual offence cases, the Secretary for Justice provides specific information to the trial judge before the pre-trial review. The judge may also give directions for the proceedings and arrange for special protection of victims attending the trial.
5. Trial
In Hong Kong, the prosecution opens its case first 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.
If the Court finds there is a “case to answer”, then it will be the defence’s case. The accused can:
- give evidence personally and call other witnesses;
- choose not to give evidence personally but only call other witnesses to give evidence; OR
- 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 and/or the defence, the Court has the discretion to order that someone be called as an additional witness. However, this discretion is rarely exercised.
6. Closing submissions and verdict
The trial will then proceed to the closing speech stage after parties finish their evidence, after which the Court will deliver its verdict. 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.
7. Hearings in the 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. Members of 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 being empanelled as a juror. The defence can object to no more than five potential jurors without giving reasons and can object to any additional one(s) 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’ Courts 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 proceedings and the jury will sit and listen 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 retire from the courtroom if there are any legal issues or arguments which need to be resolved without the presence 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 are made to the jury by both 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 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, not the jury, who is responsible for sentencing the convicted offender.
8. Appeal
- If I am convicted and I want to lodge an appeal, what should I do? Can I appeal against the conviction or sentence or both?
- How to prepare for an appeal?
- If I am acquitted, can the prosecution appeal against the acquittal decision?
- If I am convicted, can the prosecution appeal against sentence?
9. Voir dire and alternative procedure
If I make an admission to the police involuntarily, will the admission be admissible?
The Principles
A confession made to the police in a record of interview is hearsay evidence because the prosecution needs to rely on the truth of the confession. Hence, for such a record of interview to fall within one of the exceptions to the hearsay rule, it must be voluntary, in the sense that it must not be obtained from the defendant either by fear of prejudice or hope of advantage excited or held out by a person in authority.
Even if the confession is voluntary, the court still has a residual discretion to rule out the confession if its prejudicial effect outweighs its probative value, to ensure the Defendant enjoys a fair trial.
The burden of proving voluntariness lies with the prosecution, who must clearly show that the confession was not made through any improper means.
Procedures – Voir Dire and Alternative Procedure
In terms of procedure, the Court usually determines whether a certain piece of evidence is admissible through a process known as “voir dire” or the “alternative procedure”.
Voir Dire
A voir dire is the procedure adopted in the Court of First Instance of the High Court where a judge determines whether a certain piece of evidence, especially one relating to confessions, should be admissible in court as part of the prosecution case. It operates like a “trial within a trial” in that it is a special procedure that takes place during the course of the trial, but is separate from the general issues. The burden of proof lies with the Prosecution to establish that the confession was made voluntarily, and it is the judge who decides on whether that is the case.
Voir dire would normally be held before empanelling the jury. This ensures that if the evidence is ultimately ruled inadmissible, the jury who are not legally trained would not be influenced by having heard the inadmissible evidence in the voir dire.
If the confession is ruled involuntary, it will be inadmissible. However, even if the Judge finds the confession voluntary, he may exercise his residual discretion to exclude it if it is deemed unfair.
Alternative Procedure
Under the alternative procedure, the prosecution witnesses present their evidence and are cross-examined on both the general issue of the defendant’s guilt and the special issue of admissibility. The ruling on admissibility is given at the end of the prosecution’s case, i.e. before the defence presents its case.
Alternative procedure is often used in the Magistrates’ Courts and the District Court. The professional judge or magistrate has the ability to put excluded evidence out of his or her mind when dealing with the general issue.