A. Introduction to the criminal courts in Hong Kong
1. Magistrates’ Courts
The Magistracy is the first-tier court in the criminal justice system of Hong Kong. There are seven Magistrates’ Courts in Hong Kong and the Magistrates hear a wide range of summary offences (triable summarily only) and indictable offences (triable either summarily or upon indictment). Notwithstanding the above, all criminal cases (whether concerning summary or indictable offences) commence at a Magistrates’ Court, and shall either continue in the Magistrates’ Court or be transferred to the higher courts.
The maximum sentence a Magistrate can impose is 2 years’ imprisonment for a single offence, and 3 years’ imprisonment where there are two or more indictable offences being dealt with at the same time. The Magistrate may also impose a maximum fine of HK$100,000. However, some Ordinances give Magistrates a greater power to impose sentences of up to 3 years’ imprisonment and a fine of up to HK$5,000,000. Magistrates hear cases without a jury.
Minor offences such as hawking, traffic contraventions and littering are heard in the Magistrates’ Courts by Special Magistrates. In theory, Special Magistrates can impose a sentence of imprisonment up to 6 months for one offence or up to 12 months for more than one offence (see section 91 and section 57 of the Magistrates Ordinance, Cap. 227). However, in practice, Special Magistrates will not be trying any offence which will likely result in imprisonment given that they cannot impose any prison sentence. The maximum fine that Special Magistrates can impose is up to $50,000.
The Magistrates’ Courts also deal with certain preliminary procedures before the more serious indictable offences are transferred to either the District Court or the Court of First Instance of the High Court. The procedure to be conducted by the Magistrate before transferring a case to the Court of First Instance is called the “committal proceeding”, with exceptions applied to offences such as sexual abuse and cruelty. This is essentially a screening test to make sure that cases will only be “committed” for a trial with a jury in the Court of First Instance if the prosecution can provide enough evidence before the Magistrate to establish a prima facie case against the accused person.
2. Juvenile Court
The Juvenile Court is located in the Magistrates’ Court and hears charges against young people aged under 16 (unless it is a case of murder or manslaughter).
3. District Court
The District Court deals with all indictable offences and may hear all serious criminal cases except certain offences such as manslaughter, murder and rape. The maximum term of imprisonment a District Court judge can impose is 7 years. District Court judges also hear cases without a jury.
4. Court of First Instance of the High Court
The Court of First Instance deals with indictable offences . There is no limit as to the length of imprisonment that the Court of First Instance may impose, hence it can impose the maximum penalty that is set out in the legislation creating the offence. Judges of the Court of First Instance hear criminal cases together with a jury. They also hear appeals from the Magistracy, where a judge will sit alone and determine appeals from decisions of the Magistrates’ Courts.
5. Court of Appeal of the High Court
The Court of Appeal hears appeals from the District Court and the Court of First Instance. The Court of Appeal generally consists of three judges sitting together to hear a case.
6. Court of Final Appeal
The Court of Final Appeal is the highest appellate court in Hong Kong, and hears appeals from the Court of First Instance and the Court of Appeal. Leave (i.e. permission) to appeal must first be obtained from the three-member Appellate Committee of the Court of Final Appeal. The Court of Final Appeal consists of five judges sitting together to hear a case, which includes an overseas non-permanent judge.