POLICE & CRIME

I. Criminal liability and types of penalties

Criminal liability is generally made up of two elements: (1) the guilty act or omission known as the “actus reus”, and (2) the prohibited state of mind or guilty mind known as the “mens rea”. 

Most criminal offences require the co-existence of the above two elements (i.e. actus reus and mens rea) at the same time. This concept is derived from the Latin expression “actus non facit reum nisi mens sit rea”, which means that "the act will not make a person guilty unless the mind is also guilty". For example, a person is not guilty of murder if he caused the death of another person by accidentally knocking him down with his car. The mens rea for the offence of murder requires an intention to kill another person or cause him very serious bodily injury, which is lacking in this example. However, this person may have committed the offence of dangerous driving causing death because the mens rea required in such an offence is an intention to drive the motor vehicle, which is present in this example. Whether this person is guilty of dangerous driving causing death depends on whether he committed the actus reus, i.e. whether he drove his car in a dangerous manner as defined in the legislation (see Question 4 under Case Illustration).

In some special cases, known as “strict liability offences”, no prohibited state of mind is required and a guilty act is sufficient for criminal liability. An example can be found in  sections 8 and 10 of the Water Pollution Control Ordinance (Cap. 358). Under these sections, any person commits an offence if he discharges any polluting matter into the waters of Hong Kong in a water control zone. There is no need to prove that the offender knew of the existence of pollutants in the materials he discharged or that he intended to pollute the water.

It should also be noted that under the Hong Kong legal system, everyone is presumed innocent until the person has been proven guilty. Hence a person will only be treated as guilty of an offence if he or she is convicted by the Court. Upon conviction, that person will be sentenced (i.e. punished) by the Court (see Part A below).

II. Criminal records and the Rehabilitation of Offenders Ordinance

III. Police powers

A. Types of Penalties

WHAT TYPES OF PENALTIES ARE THERE FOR COMMITTING A CRIMINAL OFFENCE?

The maximum penalty for committing a particular offence is usually set out in the legislation of the relevant offence. The Court will decide what sentence (i.e. penalties) to impose on an offender by taking into consideration all the relevant factors, including for example, the nature of the offence, the maximum penalty set out in the legislation, the cause and manner of the commission of the offence, and the individual circumstances of the offender. The following list explains the usual types of penalties (i.e. sentencing options) that the Courts in Hong Kong may impose on an adult offender:

a. Imprisonment: In Hong Kong, the death penalty has already been abolished. Imprisonment is therefore the heaviest penalty and involves incarceration of the convicted offender in prison for a period of time. The heaviest form of imprisonment is life imprisonment. Normally, the offender need not actually serve the full length of the  term of imprisonment imposed by the Court. According to  rule 69  of the Prison Rules (Cap. 234A), a prisoner’s term of imprisonment may be subsequently reduced for good behaviour. The maximum amount of reduction should not exceed one-third of the imposed term of imprisonment. In practice, a prisoner will normally be given the full one-third reduction unless he or she behaves poorly or violates any prison rules. Hence, if a person is sentenced by the Court to serve 3 years’ imprisonment, that prisoner will usually be released from prison after 2 years. Rule 69 does not apply to a prisoner serving a sentence of imprisonment for life.

b. Suspended Sentence: The Court may impose a fixed term of imprisonment and then order that the sentence shall not take effect for a fixed period of 1 to 3 years. This is called a suspended sentence and the practical effect is that the offender need not serve any prison sentence unless that offender commits an offence again within the prescribed period of time during which the sentence is suspended. Suspended sentences cannot be imposed in respect of certain offences, known as “excepted offences”, which are set out in Schedule 3 of the Criminal Procedure Ordinance (Cap. 221). These include robbery, indecent assault and other serious crimes. Moreover, suspended sentences are only applicable to offenders who are sentenced to not more than 2 years’ imprisonment (see section 109B(1) of the Criminal Procedure Ordinance).

c. Discharge (with or without conditions): A discharge is the release of an offender without imposing any penalty after convicting him or her of an offence. This is an exceptional order which may be made if the Magistrate takes the view that it would be inexpedient to inflict any punishment other than a nominal one on the offender (having regard to the character, antecedents, age, health or mental condition of the offender, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed) (see section 36 of the Magistrates Ordinance (Cap.227)). 

An absolute discharge bears no conditions, although a criminal conviction is still recorded against the offender. Where a conditional discharge is given by a Magistrate, the offender is required to enter into a recognizance, with or without sureties, in a sum not greater than HK$2,000, to be of good behaviour by not doing certain prohibited acts, and to appear in court for sentencing when called on at any time during a fixed period of up to 3 years. If the offender commits a prohibited act during the prescribed period, the offender may be required to pay the recognizance amount or be punished by the Court for the original offence. A judge of the District Court or the Court of First Instance of the High Court also has the power to order a conditional discharge of an offender after conviction under section 107 of the Criminal Procedure Ordinance and the recognizance amount may even exceed HK$2,000.
 

d. Binding Over: A bind-over order is not a form of punishment but a preventive measure whereby the court requires a person to enter into a recognizance, with or without sureties, in a fixed sum, to be of good behaviour or to keep the peace for a period not exceeding 3 years. The Court of Final Appeal held in Lau Wai Wo v HKSAR [2004] 1 HKLRD 372 that a requirement in general terms that the person is to be of good behaviour or to keep the peace is too vague. Hence the bind-over order must also make clear what the person must not do during the prescribed period. For example, if a bad-tempered person assaulted another in public, the Court may order that person to be “bound over in the sum of HK$1,000 for 1 year to be of good behaviour and to refrain from engaging in fighting in public”. If that person fights in public within the one-year period, the Court will order him to pay the HK$1,000. A bind-over order may be issued against an accused person with or without a conviction, or even against a witness or a complainant who misbehaves in a court hearing. 

For a person who has no previous criminal record and has committed an offence which is not too serious (e.g. common assault or fighting in public place), the prosecution may agree to offer no evidence against that person on the condition that that person agrees to be bound over by the Magistrate. The advantage of this procedure (commonly called “O.N.E. Bind Over”) from the accused person's viewpoint is that he is technically never convicted of the criminal charge. On the other hand, the interest of justice is served by subjecting the accused person to a court order of a preventive nature so that he will not commit similar wrongdoing again. This O.N.E. Bind Over procedure generally requires the consent of both the prosecution and the accused person with the approval of the Magistrate.

e. Community Service Order: A community service order is an alternative to imprisonment whereby the offender is required to perform unpaid work in the community. The work is administered by the probation service. The maximum length of such a sentence is 240 hours. Not all offenders are suitable for such orders, and suitability reports are called for before such orders are made. Breaches of community service orders will usually be dealt with by the imposition of an immediate custodial sentence.

 

f. Drug Addiction Treatment Centre Order: The Court may order offenders who are addicted to dangerous drugs to receive treatment and rehabilitation in drug addiction treatment centres. Such orders are not suitable for all offenders and suitability reports are called for before such orders are made. Offenders are kept in prison or in a reception centre whilst awaiting the report.

g. Probation Order: Probation is a form of punishment primarily aimed at the rehabilitation of offenders. A probation order can last for 1 to 3 years. Whilst it is not precluded as a sentencing option for serious crimes, a probation order is unlikely to be made in respect of serious crimes. A probation order may only be made if the convicted offender consents to it. Persons under probation orders are required to be of good behaviour and to remain in contact with a probation officer as may be required. People on probation may also be required to reside in an approved institution. If a probationer re-offends whilst on probation (that is, the probation order has not yet expired), or breaches the conditions of the probation order, that person may be re-sentenced for the original offence. A second probation order may be made, which subsumes the first one. Probation orders cannot be combined with sentences of imprisonment or community service orders. For example, a guilty offender cannot be sentenced to both a community service order and a probation order at the same time.

 

h. Fine: A fine is a monetary penalty which may be imposed in lieu of or in addition to other forms of penalty. Failure to pay a fine will result in imprisonment, usually for a period of time which accords with the amount of the unpaid fine. Fines may be ordered to be paid by instalments.

 

i. Compensation Order: Where a person is convicted of an offence, the court may order that person to pay to the aggrieved party compensation for personal injury or loss or damage to property, or both, as the court deems reasonable. 
 

j. Restitution Order: A restitution order is an order under which the offender is compelled to return any “ill-gotten gains” to the rightful owner, or any person as the court deems fit. Voluntary restitution prior to a conviction will not acquit the accused person of any charges. However, voluntary restitution is a mitigating factor that the Court may take into account when sentencing the convicted offender. 

k. Forfeiture: Under a forfeiture order, property is confiscated (taken away) from an offender. Where another person is entitled to that property, the court will order that it be returned to that person. If an owner cannot be identified, under a forfeiture order, the property may be sold or retained by the government or destroyed if it is of no value.

l. Disqualification from driving: For drivers, disqualification from driving is considered a severe penalty. It is usually imposed only where the legislation governing the offence expressly requires it or where the court finds that the offender’s continued driving would pose a danger to the public.

 

m. Disqualification of company directors: Under certain sections of the Companies Ordinance (Cap. 622), the court may disqualify a guilty offender from holding the position of company director. Disqualification may be for periods of over 10 years in the case of particularly serious offences. 
 

n. Hospital Order: This Order applies to a person with mental problems. Detention in a hospital with police security is provided for under the Mental Health Ordinance (Cap.136). Where the crime is serious, and where doctors cannot predict when the offender may be fit for release, the period of detention is usually left indeterminate.

2. Are the penalties for young offenders different from those for adults?

It depends on the actual age of the young offender. As explained in the answer to Question 1 above, a child under the age of 10 cannot be guilty of any offence. Under section 11 of the Juvenile Offenders Ordinance, no child aged between 10 and 13 can be sentenced to imprisonment; and no young person aged between 14 and 15 can be sentenced to imprisonment if that person can be suitably dealt with in any other way. Under section 109A(1) of the Criminal Procedure Ordinance, no offender aged between 16 and 20 can be sentenced to imprisonment unless no other method of dealing with the person is found to be appropriate. However, section 109A(1) does not apply to certain offences known as “excepted offences”, which are set out in Schedule 3 of the Criminal Procedure Ordinance. These excepted offences include manslaughter, robbery, indecent assault and other serious crimes.

Subject to the above, the sentencing options (or penalties) explained in Part A above for adult offenders may generally be imposed on juvenile or young offenders. However, the objective of sentencing a young person is more to help the person get back on the right track (i.e. rehabilitation) than to punish.

The following list explains the usual types of penalties (i.e. sentencing options) that the Courts in Hong Kong will impose on juvenile or young offenders: 

a. Detention Centre: for male offenders from the age of 14 to 24. Emphasis is placed on physical labour and strict discipline in order to administer a short sharp shock on the offender so that he will not re-offend again. Detention centre orders are not available as a sentencing option for offenders who have previously served a prison sentence or training centre order. The period of detention will be decided by the Commissioner of Correctional Services, who will consider the conduct of the offender during detention. For offenders aged between 14 and 20, the minimum period of detention is 1 month and the maximum is 6 months. For offenders aged between 21 and 24, the period of detention is from 3 months to 12 months. Upon release, offenders may be subjected to a supervision period of 1 year during which they need to obey certain requirements, such as having to stay at home during certain times at night. Failure to comply with the supervision requirements may result in the offenders being sent back to the detention centre.

b. Training Centre: for both male and female offenders aged from 14 to 20. Emphasis is placed on rehabilitation, and offenders are trained in a trade. The period of detention will be decided by the Commissioner of Correctional Services, who will consider the conduct of the offender during detention. The minimum period of detention is 6 months and the maximum is 3 years. Upon release, offenders may be subjected to a supervision period of 3 years during which they need to obey certain requirements such as having to stay at home during certain times at night. If the offenders fail to comply with the supervision requirements, they may be recalled to the training centre and be detained there for another 6 months or up to 3 years after they were first sent to the training centre (whichever is the later).

 

c. Rehabilitation Centre:  for both male and female offenders aged from 14 to 20. It is aimed at offenders whose offences call for a short custodial sentence, but who are not suited to detention centre or training centre orders. The objectives are to deter further criminal conduct and to rehabilitate detainees in terms of socially acceptable behaviour. Rehabilitation centre orders are not available to offenders who have previously served a prison sentence or a detention in a training centre, detention centre or drug addiction and treatment centre. 

The offenders will first be detained full time at a rehabilitation centre for a period between 2 months and 5 months, to be determined by the Commissioner of Correctional Services by considering the conduct and progress of the offenders. Then they will be subjected to a period of residence at another rehabilitation centre during which they may be permitted to go out at certain hours to study, work or do other approved activities. The period of residence is between 1 month and 4 months, to be determined by the Commissioner of Correctional Services by considering the needs and progress of the offenders. Upon release, the offenders may be subjected to a supervision period of 1 year during which time they need to obey certain requirements such as a requirement to stay at home during certain times at night. Failure to comply with the supervision requirements may result in the offenders being sent back to the rehabilitation centre.

d. Reformatory School:  for male offenders aged from 10 to 15. Emphasis is placed on rehabilitation and changing the offenders’ behaviour and social attitudes through a social work approach. The period of stay is from 1 to 3 years depending on behaviour during the stay.

e. Remand Home: for both male and female offenders aged from 10 to 15. Remand home is administered by the Social Welfare Department. The emphasis is on rehabilitation through short-term custodial care and training, in order to help the offenders develop a regular life pattern and self-discipline. The maximum period of detention is 6 months.

f. Orders against parents or guardians: Under sections 9 and 10 of the Juvenile Offenders Ordinance, parents and guardians of young offenders aged between 10 and 15 can be compelled to attend court when their child is dealt with. Such parents and guardians can also be ordered to give security for the child’s behaviour or to pay a fine. Such fines and security, if not paid, can be recovered from the parent or guardian by way of distress (seizing their properties and converting them into cash) or an imprisonment order as if the parent or guardian had been convicted of the offence.

 

g. Probation: see Part A
 

h. Drug Addiction Treatment Centre: see Part A
 

i. Fine: see Part A
 

j. Discharge: see Part A
 

Under what circumstances could the criminal record be deleted?

Once a person has been convicted of a criminal offence, the criminal record cannot be deleted from the police or court files (unless the offender successfully appealed against the conviction).

However, under section 2 of the Rehabilitation of Offenders Ordinance (Cap. 297), if a person has not previously committed any offence before his conviction and is not sentenced to imprisonment exceeding 3 months or a fine exceeding HK$10,000, that person’s conviction record will be considered “spent” if he does not re-offended within a period of 3 years.

The effect of a spent conviction is that, in general, that person should be regarded as not having been convicted of the offence. For example, if that person is asked by his potential employer or other person whether he has committed any offence before, he can simply say “No”. He cannot be dismissed by his employer on the ground that he did not disclose his criminal record or on the ground that he has a conviction (see section 2 of the Rehabilitation of Offenders Ordinance). However, it is noteworthy that this spent conviction scheme is subject to a number of exceptions. For example, it does not apply if that person wants to apply for certain high ranking jobs in the Government, or to become a lawyer, accountant, insurance broker or director of a licensed bank (see sections 3 and 4 of the Rehabilitation of Offenders Ordinance for further details of the exceptions). Simply put, a person’s spent criminal record may still be adduced against him in certain scenarios.

Moreover, if that person applies for a Certificate of No Criminal Conviction from the police for emigration purposes, the police will still disclose such criminal record in the Certificate with a note that the relevant conviction is regarded as spent under Hong Kong Law.

 

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.

1. Fixed Penalty Tickets

Fixed-penalty notices, for littering or illegal parking, for example, are a fact of contemporary life. They are designed to reduce paperwork and expense by allowing police officers and certain other public officers to deal with certain low level anti-social behaviour with on-the-spot penalties.

The fixed-penalty notice is not a fine or a criminal conviction. A person issued with a fixed-penalty notice can opt not to pay it and challenge it in court. If the fixed-penalty notice is neither paid nor challenged in court within the time allowed in the notice, the penalty, and any additional penalty prescribed by the relevant Ordinance, may be enforced in the same way as fines are enforced. Even so, this is not a conviction.

Section 2(3) of the Rehabilitation of Offenders Ordinance (Cap. 297) ("RHO") provides that the payment or recovery of a fixed penalty, or any additional penalty, under the Fixed Penalty (Traffic Contraventions) Ordinance(Cap. 237), the Fixed Penalty (Criminal Proceedings) Ordinance (Cap. 240), the Fixed Penalty (Public Cleanliness Offences) Ordinance (Cap. 570), the Fixed Penalty (Smoking Offences) Ordinance (Cap. 600) or the Motor Vehicle Idling (Fixed Penalty) Ordinance (Cap. 611) is not a conviction for the purposes of section 2(1) or 2(1A) of the RHO.

Correspondingly, except for the purposes of recovery of the fixed penalty and any additional penalty due for late payment, no evidence is admissible in any proceedings which tends to show that that individual has paid, or been ordered to pay, a fixed-penalty notice. Payment of, or an order to pay, a fixed penalty notice, or any failure to disclose a fixed penalty notice is not a lawful or proper ground for dismissing or excluding a person from any office, occupation or employment or for treating them less favourably than other employees because of the fixed-penalty notice.

2. Bind Overs

A Bind Over is neither a conviction nor a punishment. It is a preventative measure whereby a person enters into a recognisance before the court (gives a promise) to engage in good behaviour and to keep the peace for a period not exceeding three years. The recognisance is a promise to pay a specified sum of money if the recognisance is breached.

The bind over specifies the conduct which must not be committed during the period of the bind over. Two drivers may have argued, for example, over a parking space. One driver may have pushed the other and been arrested for common assault or even assault occasioning actual bodily harm. If that driver is a first offender who has led an otherwise blameless life, the prosecution may be prepared to accept a not-guilty plea in return for a bind over to keep the peace and not to engage in a further fight in a public place for 12 months.

In this case the driver is acquitted of assault and therefore has no criminal record. The procedure is a convenient way of dealing with comparatively minor offences which are not likely to be repeated. If the recognisance is breached, the driver will be ordered to pay all or part of the recognisance entered into at the time of the bind over. Orders made for payment of all or part of the recognisance if the bind over is breached are similarly not criminal convictions. The driver is simply paying all or part of the money he has undertaken to pay if the promise to the court to engage in good behaviour and keep the peace is not honoured.

3. Police Superintendent's Discretion Scheme

Persons under 18 who have committed a criminal offence might be dealt with by a procedure known as Police Superintendent's Discretion. Rather than being brought before a court, the offenders are cautioned. The offenders are then placed under police supervision for a period of two years or until they reach 18 years of age, whichever is sooner.

The preconditions for a caution are: there is sufficient evidence to support a prosecution; the offenders must admit the offence; and the offenders and their parents or guardians must agree to the cautioning. The nature, seriousness and prevalence of the particular offence is considered, as is any previous criminal record. If there was a previous conviction, it is unlikely there will be a caution. The attitude of the offenders and their parents or guardians, and the views of the victim of the offence are also taken into account.

A caution under Police Superintendent's Discretion Scheme is not a criminal conviction. Therefore, there is no obligation to disclose it, and the offender has a clear record.

The police, however, keep records of these cautions. There is nothing to prevent the police or other disciplined services from checking whether an applicant for employment with them has received a Superintendent’s caution and taking this into account when considering an employment application.

B. The Rehabilitation of Offenders Ordinance

As criminal law is concerned with the rehabilitation of offenders rather than simply punishment, in certain limited situations, convictions may become “spent”. A spent conviction is a conviction which, under the provisions of the Rehabilitation of Offenders Ordinance (Cap. 297) (“RHO”), is, subject to some exceptions, ignored after a specified period of time.

The objective of the RHO is to allow offenders to put a past mistake behind them. When a conviction has become “spent” under the RHO, offenders can, subject to exceptions set out in the RHO, claim not to have a criminal record, and the spent conviction cannot be held against them. Unless convictions are regarded as spent, they remain on the offenders’ records for the rest of their lives. The spent conviction provisions of the RHO apply only within Hong Kong. Even when a conviction is spent under the RHO, applicants for visas to visit a foreign country are required to disclose any convictions they have.

Under section 2(1) of the RHO, subject to certain exceptions, the conviction of a person who is not sentenced to imprisonment exceeding three months, whether that sentence takes effect immediately or is suspended, or to a fine exceeding $10,000, and who has not previously been convicted in Hong Kong of any offence will be treated as spent once three years has elapsed without another conviction for an offence in Hong Kong. The “spent” conviction provisions of the RHO are very limited. They apply only if there has not been a previous conviction, if the present conviction is dealt with by imprisonment not exceeding three months or a fine not exceeding $10,000, and if the person is not convicted of a subsequent offence within the three-year qualifying period.

If a conviction has become spent section 2(1)(c)(i)(ii)(iii) of the RHO provide that, subject to section 3(3) and (4)of the RHO, no evidence about that conviction is admissible in any proceedings. Neither the spent conviction nor any failure to disclose it justifies dismissal or exclusion from any office, profession, occupation or employment or any form of prejudice in that office, profession, occupation or employment.

It is the length of the prison sentence imposed that counts, not the actual time served. Under Rule 69 of the Prison Rules (Cap. 234A), a person sent to prison for a period of more than one month may, on the ground of industry and good conduct, be granted remission of sentence. That remission cannot exceed one third of the sentence imposed by the court. For example, a person sentenced to imprisonment for 120 days (i.e. four months) might, allowing for good conduct, be released after serving 80 days (less than three months).  However, the conviction cannot become spent because the sentence imposed exceeded three months’ imprisonment.

If an offender is convicted of more than one offence at the same court hearing, the spent conviction provisions in section 2 of the RHO still apply, provided the sentence for each offence does not exceed three months’ imprisonment or a fine of $10,000. In addition, the aggregate sentence cannot exceed three months' imprisonment or a fine of $10,000, irrespective of whether the sentences run concurrently or consecutively (one after the other).

1. Suspended Sentences

A suspended sentence is a sentence of imprisonment for the purposes of the RHO. When a sentence is suspended, the court imposes a prison sentence, but does not order it to take effect immediately. Under s. 109Bof the Criminal Procedure Ordinance (Cap. 221), a court which imposes a sentence of not more than two years’ imprisonment may suspend that sentence for a period of not less than one year and not more than three years. The prison sentence is left hanging over the head of the offender for the period of the suspension. A suspended sentence which does not exceed three months’ duration can become spent under s. 2(1) of the RHO; a longer sentence cannot.

2. Orders for Detention

For the purposes of the RHO, “imprisonment” does not include orders for detention in a reformatory school, a detention centre, training centre, rehabilitation centre or place of detention. These orders relate to offenders under 25. With these offenders, the emphasis is on long-term reform and rehabilitation, rather than punishment. They are indeterminate sentences in the sense that the court makes an order confining the offender to a reformatory school, detention centre, training centre, rehabilitation centre or other place of detention without specifying the duration of the detention.

Subject to serving a minimum period of detention, such offenders are released when the Commissioner for Correctional Services is satisfied they are fit to be released. Training centre, detention centre and rehabilitation centre orders involve post-release supervision, which is an important part of long-term reform and rehabilitation. This post-release supervision affects the calculation of the three-year period for spent convictions. Under s. 2(2)of the RHO, the conviction of a person sentenced to a training centre, detention centre or rehabilitation centre becomes spent only after three years from the end of the period of post-release supervision.

Training centre orders can be made for males and females aged between 14 and 21 who have committed an offence punishable with imprisonment, except where the sentence is fixed by law. An example of a sentence fixed by law is murder, for which the only penalty is life imprisonment. Offenders can be detained in a training centre for a maximum of three years. A minimum period of six months’ detention must be served before the offender can be considered for release.

Detention centre orders may be made for males aged between 14 and 25 convicted of an offence punishable by imprisonment, except where the sentence for the offence is fixed by law. Offenders aged 21 or over are detained in a detention centre for not less than three months or more than 12 months. Offenders aged under 21 are detained for not less than one month and not more than six months.

A Rehabilitation Centre Order can be made for males and females aged between 14 and 21. Offenders are detained for not less than three months and not more than nine months.

The period of post-release supervision to which offenders released from a training centre, detention centre or rehabilitation centre are subject means that the three-year qualifying period for the conviction to become spent runs only from the completion of the period of post-release supervision. An offender sent to a training centre could be released, for example, after nine months, provided the Commissioner for Correctional Services considers he or she fit for release.

However, under s. 5 of the Training Centres Ordinance (Cap.280), that offender may be subject to supervision by a probation officer for a period of up to three years from the date of release. The conviction which led to the training centre order becomes spent only three years after the post-release supervision period has ended.

3. Community Service Orders

A Community Service Order requiring the performance of a specified number of hours of unpaid work as recompense for committing a criminal offence made under the Community Service Orders Ordinance (Cap. 378) is not a prison sentence. A community service order can become spent three years after the conviction. Once spent, the order need not be revealed except in situations covered by s. 4 of the RHO concerning applications for positions specified in that section.

4. Probation Order

A conviction leading to a probation order becomes spent three years after the conviction. Once spent, the order need not be revealed except in situations covered by s. 4 of the RHO: applications for positions specified in that section.

C. Implications of Spent Convictions

Subject to some important exceptions in s. 4 of the RHO, where a conviction is spent, no evidence tending to show that the person was convicted in Hong Kong is admissible in any proceedings in Hong Kong. Subject to the exceptions in s. 4 of the RHO, the conviction, or its non-disclosure, is not a lawful or proper ground for dismissal or exclusion from any office, profession, occupation or employment or for prejudice against that person in the person’s office, profession, occupation or employment. This means that an employee with a spent conviction must not be treated less favourably than other employees because of that conviction.

Section 3(1) of the RHO provides that the provisions about spent convictions in s. 2(1) of the RHO do not affect the recovery of any fine ordered on that conviction. An offender given time to pay might, for example, leave Hong Kong without paying the fine. The fine is still enforceable even if that person returns to Hong Kong more than three years after the date of the sentence. Even if the conviction is spent under s. 2(1) of the RHO, there is still an obligation to pay the fine.

Section 3(3) of the RHO states that previous convictions, even if spent, can come into evidence on sentencing for subsequent offences. It is important that the court has the full picture of an offender before sentencing. Though a previous record is not a reason to increase a sentence, a repeat offender cannot expect to be treated as a first offender. However, in practice courts tend to disregard spent convictions, especially if there has been a long period between the offences.

D. Disclosure of Spent Conviction

1. Disclosure of Spent Convictions in Court Proceedings

Section 3(2)(a), (aa), (b) and (c) of the RHO allow spent convictions to come into evidence in proceedings relating to the interests of an infant and in applications to become a foster parent. In proceedings relating to infants, the welfare of the infant is the first and paramount consideration. In these situations, it is right that the court should have access to all material that could be relevant to the decision it has to make.

Spent convictions can also be introduced as evidence in child-custody hearings in divorce proceedings. What, if any, effect the spent conviction has in those proceedings depends upon the circumstances of each case and the offence leading to the conviction. A conviction for careless driving, for example, is unlikely to have any relevance in custody proceedings.

Similarly, in applications to become a foster parent, a broad view needs to be taken to ensure that children’s interests are protected. Again, the effect, if any, of the spent conviction depends on the offence and how long ago it was. A spent conviction for a sexually related offence or an offence of dishonesty would, depending on the circumstances of the particular case, be more relevant than a conviction for a motoring offence.

Spent convictions can also come into evidence if the convicted persons consent to the admission of evidence relating to those convictions or want to bring the convictions into evidence for their own reasons, or in any proceedings where the tribunal is satisfied that justice cannot be done except by admitting evidence relating to the convictions.

2. Situations Where Spent Convictions Must be Disclosed

There are many situations in the RHO where convictions must be disclosed even though they are spent. In these situations, there is no protection from disclosure of the criminal record. These situations relate to particularly sensitive areas or where the public interest justifies the requirement to disclose all convictions even if they are spent.

Under s. 4 of the RHO, all previous convictions, including spent convictions, must be disclosed when an application is made for employment as a police officer, a correctional services officer, a fire services officer, a barrister, a solicitor or an accountant. All previous convictions, including spent convictions, must be disclosed in disciplinary proceedings against a person practising as a barrister, a solicitor or an accountant, and in disciplinary proceedings against persons holding the prescribed offices set out in the Schedule to the RHO, such as a police officer, a correctional services officer or certain high ranking government employees.

Similarly under s. 4 of the RHO, all previous convictions must be disclosed by anyone applying to become a trustee or controller for a  Mandatory Provident Fund, a bank controller, a judicial officer or a probation officer; an employee of the Hong Kong Monetary Authority, Mandatory Provident Fund Schemes Authority, or Office of the Commissioner of Insurance and Securities and Futures; or Government officials who are paid on any Directorate or Directorate Pay Scale, or those above point 27 on the Master Pay Scale.

In all of the above cases, the overwhelming public interest in ensuring that only suitable people are appointed to those positions justifies full disclosure of any criminal convictions. The requirement to disclose does not automatically mean the application for employment will be rejected. Full disclosure is required so that the applicant’s suitability for the position applied for can be properly assessed.

Failure to disclose will justify termination of employment and possibly amount to the criminal offence of obtaining pecuniary advantage by deception, contrary to s. 18 of the Theft Ordinance (Cap. 210). Failure to disclose convictions which should be disclosed could lead to obtaining employment or a position which would not otherwise have been obtained. The pecuniary advantage gained by the failure to disclose is the opportunity to earn remuneration in that employment or position.

3. Penalties for Wrongful Disclosure of Spent Convictions

Section 6(1) of the RHO makes it an offence for any person who has custody of, or access to, any records kept by a public officer relating to persons convicted of any offence to disclose that information other than in the course of his or her duties as a public officer. Offenders are liable to a fine at level 4 in the Schedule to the Criminal Procedure Ordinance (Cap. 221) ("CPO"), currently $25,000. The protected information is any information which tends to show that a named or identifiable person whose conviction has become spent and is therefore rehabilitated was charged with, prosecuted for, convicted of, or sentenced for that offence.

It is similarly an offence to obtain information from records kept by a public officer which tends to show that a named or identifiable individual whose conviction has become spent and is therefore considered rehabilitated was charged with, prosecuted for, convicted of, or sentenced for an offence by means of fraud or dishonesty. This offence is punishable by a fine at level 5 of the Schedule to the CPO, currently$ 50,000, and imprisonment for six months.

4. The RHO and Sexual Conviction Record Check Scheme

Under the Sexual Conviction Record Check Scheme, prospective employers of persons undertaking child-related work and work relating to mentally incapacitated persons can ask the prospective employee to undergo a sexual convictions record check. This scheme helps employers better assess the suitability of persons applying for work with children or mentally incapacitated persons for that employment.

The Scheme is available only to prospective employees seeking work which provides services to children or mentally incapacitated persons: teachers, cleaners, school bus drivers and bus assistants, for example.

The prospective employee can apply at the Sexual Conviction Record Check Office at Police Headquarters in Wan Chai. The check covers convictions under sections 47 to 126 of the Crimes Ordinance (Cap.200) . The offences under these sections range from rape to indecent conduct towards a child under sixteen years of age. Whether or not there are such convictions is disclosed only to the prospective employee, who may then authorise the prospective employer to check the result through an Auto Telephone Answering Service. The prospective employer is told either that the prospective employee has a conviction record for offences under sections 47 to 126 of the Crimes Ordinance or that there is no conviction record for these offences. Details of any convictions are not disclosed. Convictions for offences (including sexual offences) which have become spent under s. 2(1) of the RHO will not be disclosed.

E. The Rehabilitation of Offenders Ordinance applies only to Hong Kong

The RHO does not apply outside Hong Kong. Simply because a conviction is spent in Hong Kong does not mean it will be ignored by another jurisdiction. This is particularly relevant for applications for a travel visa or for immigration.

Criminal records are maintained by the Hong Kong Police Force. A person wishing to immigrate to another country will be asked to provide confirmation that they do not have any criminal convictions. That can be done only by obtaining a Certificate of No Conviction from the Hong Kong Police. If there are previous convictions, the Hong Kong Police will not provide a Certificate of No Conviction, however long ago the convictions were. The Hong Kong Police will refuse to issue a Certificate of No Conviction even though the conviction is spent in accordance with s. 2 of the RHO.

1. Under what circumstances can the police stop and question me in a public place? Must I answer their questions?

Stopping and questioning

Under section 54(1) of the Police Force Ordinance (Cap. 232 Laws of Hong Kong), it is lawful for a police officer to stop a person who is acting in a suspicious manner. The police officer may require that person to produce proof of identity (i.e. by showing a Hong Kong ID card or passport), and detain that person on the spot for a reasonable period to make enquiries into whether or not the person is suspected of having committed any offence at any time. What constitutes a "suspicious manner" is based only on the subjective assessment of the police officer. However, the police officer must, in fact, have a genuine suspicion.

Section 49 of the Public Order Ordinance (Cap. 245) permits a police officer to require any person to produce proof of his identity for inspection for the purpose of preventing, detecting or investigating any offence. A failure by that person to produce proof of identity under these circumstances constitutes an offence.

The police and immigration officers also have power under section 17C(2) of the Immigration Ordinance (Cap. 115) to demand any resident in Hong Kong aged 15 or above to produce proof of his identity for inspection. A failure by that person to produce proof of identity as required without reasonable excuse constitutes an offence. It should be noted that this provision does not apply to foreign visitors who are staying in Hong Kong for not more than 180 days.

The right to silence

The police have the power to question anyone in accordance with the above rules. On the other hand, the common law as well as Article 11(2g) of section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) provide that a person has the right not to be compelled to testify against himself or to confess guilt, i.e. every person in Hong Kong has the right to silence. By virtue of that right, a person may in general refuse to answer any question posed by a police officer. However, the driver of a vehicle who is suspected of committing a road traffic offence or being involved in a traffic accident must give his name, address and driving licence number to the police upon request (section 63 of the Road Traffic Ordinance, Cap. 374).

2. Under what circumstances can the police stop and search me in a public area?

As mentioned in question 1, police officers may stop a person acting in a suspicious manner. In addition to stopping and questioning, the police officers can search that person for anything that may present a danger to the police officers.

Under section 54(2) of the Police Force Ordinance (Cap. 232), police officers may also stop a person whom they reasonably suspect of having committed, or being about to commit, or intending to commit, an offence. The police officers may require that person show his ID card or passport and may detain that person on the spot for such time as is reasonable to make inquiries. The police officers can also search that person for anything likely to be of value to the investigation of the suspected offence. The suspicion on the part of the police officers in these circumstances must be “reasonable”, which is to be judged on an objective basis with valid reasons. For example, the actions of a person who is carrying a knife and waiting nervously outside a jewellery shop may give rise to a reasonable suspicion.

No matter whether the police officers exercise their power to search a person under section 54(1) or (2) of the Police Force Ordinance (Cap. 232), there is no power to seize anything found on the person being searched.

The police also have the power to stop, search and detain any vehicle in or upon which there is reason to suspect that anything stolen or unlawfully obtained may be found (section 55 of the Police Force Ordinance (Cap. 232)).

Where the police reasonably believe an unlawful assembly or riot has occurred, is occurring, or may occur in any place, and offensive weapons have been or may be used during such an offence, they may stop and search any person in a public place within the vicinity to ascertain whether or not that person is guilty of such an offence (section 33(6) of the Public Order Ordinance, Cap. 245).

A person can be searched only by a police officer of the same sex . If there is no female police officer on the spot to search a female suspect, that woman should be brought to the nearest police station so that the search can be carried out by a female officer.

Under section 50(6) of the Public Order Ordinance (Cap. 245), police officers may search an arrested person and take possession of anything they may reasonably suspect to be of value to the investigation of the suspected offence.

3. Do the police have power to search and examine the digital content of a mobile phone found on the arrested person?

A police officer has power to do so if he has a warrant.

When it is not reasonably practicable to obtain such warrant before a search is conducted, the police officer must also have a reasonable basis for having to conduct the search immediately as being necessary (i) for the investigation of the offence(s) for which the person was suspected to be involved, including the procurement and preservation of information or evidence connected with such offences; or (ii) for the protection of the safety of persons (including the victim(s) of the crime, members of the public in the vicinity, the arrested person and the police officers at the scene). Other than a cursory examination for filtering purpose, the scope of the detail examination of the digital contents of a phone should be limited to items relevant to the objectives.

In addition, a police officer should make an adequate written record of the purpose and scope of the warrantless search as soon as reasonably practicable after the performance of the search and a copy of the written record should be supplied forthwith to the arrested person unless doing so would jeopardize the ongoing process of criminal investigation.

The arrested person is under no legal obligation to unlock his password-protected mobile phone despite the request of the police officer.

4. What are the consequences if I refuse to cooperate with the police when they are exercising their powers to stop, question or search me?

It first depends on whether or not the police have proper legal basis to do the act concerned (see the earlier Q&As as to the circumstances when the police can lawfully stop, question or search a person). If not, then the police officers concerned are not acting in due execution of their duties, and one may refuse to cooperate. If yes, then one must in general cooperate with the police, as it is an offence for a person to assault, resist or deliberately obstruct the police in the execution of their lawful duties (see for example, section 63 of the Police Force Ordinance and section 36 of the Offences Against The Person Ordinance). The maximum penalty for such an offence is imprisonment of two years.

Moreover, any Hong Kong resident aged 15 or above who without reasonable excuse fails to produce proof of identity (showing his ID card or passport) for inspection by the police upon demand commits an offence and is liable to a fine of $5,000 (section 17C of the Immigration Ordinance).

However, even if the police can lawfully ask you questions, you have a right to silence and so may refuse to answer any questions posed by the police (except that you may need to provide your name and address to the police).

5. If I don't want to be searched in public by the police, what can I do?

If the situation allows, the police should try to conduct the search in a more private or discreet place. You may also request the police to carry out the search at the nearest police station. However, the law in general gives the police a wide discretion to decide where the search is to be conducted in a particular case. The police officers may therefore insist on conducting the search on you in public despite your request, if they have reason to do so (e.g. they suspect that you may have weapons).

1. Under what circumstances can the police enter and search my home or office?

Power of Entry and Search

The police can enter and search any premises with a warrant issued by a Magistrate. In order to obtain such a search warrant, the police must generally provide evidence on oath to the Magistrate to show that there is a reasonable cause to suspect that there is any article or document in any building or place which is likely to be of value to the investigation of any offence. Under the warrant, the police may break into the premises if necessary. While the search is being carried out, the police may also detain any person who may have such articles or documents in his possession or control in order to prevent any hindrance to the search (section 50(7) of the Police Force Ordinance).

The police can also enter and search any premises without a warrant , if they have reason to believe that a person to be arrested is inside the premises.

For the cases concerning the National Security Law, the police can enter and search a premise without a warrant under the authorisation of a police officer not below the rank of Assistant Commissioner of Police. The police officer can authorise such search when they believe that anything that is or contains evidence of an offence endangering national security is in place, the evidence is necessary for national security or for the protection of anyone’s safety, and it is not reasonably practicable to obtain a warrant.

Otherwise the police have no general power to enter into private premises without the consent of the owner or occupant.

1. Under what circumstances can the police arrest me? Must they obtain a warrant of arrest beforehand?

The police may arrest a person according to a warrant issued by a Magistrate under sections 31, 72, 73 or 74 of the Magistrates Ordinance. For example, an arrest warrant may be issued if an accused person does not appear in Court when he is due to answer a charge.

However, an arrest warrant is not always necessary. Under section 50(1) of the Police Force Ordinance, a police officer can "apprehend" (i.e. arrest) a person if he reasonably suspects the person being arrested is guilty of an offence. Whether there is such a reasonable suspicion in a particular case is to be determined objectively by reference to facts and information which the arresting officer has at the time of the arrest. It is not necessary that the officer knows the exact statutory provision that the suspect has violated, so long as the officer reasonably suspects that the suspect has done something amounting to an offence.

A person should be informed of the offence or the crime for which he is suspected to have committed when he is arrested. The arrested person must be told in simple, non-technical language that he could understand, the essential legal and factual grounds for his arrest.

2. What are my rights if I am being arrested?

First, you have a right to be informed by the police officer of the reason for arresting you. If the police officer fails to tell you the reason at the time of the arrest, the arrest is generally unlawful. If, however, you try to run away or the situation is such that it is impractical for the officer to tell you the reason, then the officer may inform you the reason at a later time after the arrest.

Secondly, you have a right to silence. Immediately after the arrest, the police must inform you of your right to remain silent. The police officer will caution you by saying, "You are not obliged to say anything unless you wish to do so but whatever you say will be put into writing and may be given in evidence." You may therefore choose whether or not to answer any questions posed by the police (except that you may need to provide your name and address to the police).

You should also note that under section 101A of the Criminal Procedure Ordinance, any person effecting an arrest may use such force as is reasonable. What constitutes reasonable force depends on the circumstances. A police officer may, for example, employ handcuffs or other means of restraint where it is necessary to prevent escape. Section 50(2) of the Police Force Ordinance also allows the police officer to use all means necessary to effect an arrest if the suspect forcibly resists or attempts to evade the arrest.

2. If I have been arrested and detained at the police station, is there a maximum period of detention? Under what circumstances can the police detain me for a longer period?

A person who is detained in custody by the police shall be brought before a Magistrate as soon as practicable and generally within 48 hours from the time of the arrest. This period can be extended to 72 hours if a warrant for arrest and detention in respect of deportation is applied for.

If the police want to detain you for a longer period, they must first bring you before a Magistrate and make the relevant application. You may object to such an application and ask for bail (see Part K).

4. If I am detained by the police in the police station and am asked to make a statement, what are my rights? Must I answer every question raised by the police during the interview?

In general, the rights of a person under detention are set out in a document called "Notice to Persons in Custody". This document should be prominently displayed inside any interview room of a police station. The police should also explain to the detained person the basic contents of this document before the interview, and should give a copy to the detained person. The detained person's rights include:

• Requesting that the detained person's relatives or a friend be informed of the detention;
• Communicating and consulting with a legal adviser (unless any unreasonable delay or hindrance will likely be caused to the processes of investigation or the administration of justice);
• Asking to be released on bail;
• Being provided with drinking water upon request, adequate food and refreshment as well as medical care if necessary.

The questioning of the detained person may be carried out by way of a video-taped interview (“VRI”) (depending on the circumstances so required). It is worth noticing that you are entitled to refuse to participate in a VRI. The police have their prescribed forms that suspects are invited to sign to confirm whether or not they consent to a VRI. If you do not consent to a VRI, the police can still interview you, but with the traditional method of recording the interview in writing. Before taking a statement from the detained person, the police officer must caution that person as set out above (please refer to Question 2 of Part E). You may choose whether or not to answer any question asked by the police, as you have a right to silence. You may also request to obtain legal advice before deciding whether or not to answer any questions. You may also have your lawyer present during the questioning and taking of any statement. If you choose to answer any of the police officer's questions, all the questions and answers will be written down as a "Record of Interview" (often referred to as a "cautioned statement"). Upon conclusion of the interview the police have an obligation to provide you with a copy of this Record of Interview.

5. If the police fail to comply with any of the rules governing the procedures relating to questioning, searching, arresting, detaining persons or the seizing of articles, what are the possible consequences?

It depends on the nature and extent of the non-compliance. It may result in the court refusing to admit the evidence obtained if the case goes to a criminal trial. On the other hand, it may allow you to start a civil action against the police for compensation. It may also result in a disciplinary action against the police officer concerned.

6. If I am detained by the police in the police station, how can I find a lawyer? Can I obtain free legal services at this stage if I cannot afford a private lawyer?

You may ask the police for a list of solicitors whom you can consult. The police have a duty to provide the list to you upon request, and allow you to telephone the solicitor unless this will seriously prejudice their investigation. However, free legal services are not available to you at this stage. The Legal Aid Scheme and Duty Lawyer Service are only available after you have been charged with an offence and brought before the court.

You can apply to the Duty Lawyer Service in order to seek free legal representation at your first hearing or subsequent hearings in a Magistrates' Court. For hearings at the District Court or the Court of First Instance, you can apply to the Legal Aid Department for free or subsidised legal services. For more information about the Duty Lawyer Service or the Legal Aid Scheme, please view another topic – Legal Aid.

7. If I am detained in the police station and I want to be released, what should I do?

You should first ask the police whether you can be released on bail. The police should grant bail to an accused person unless the alleged offence is serious or there is other good reason to detain the accused. Bail will usually be granted subject to a cash deposit or conditions of recognizance. The police will direct the accused to return to the police station or to appear in court on a specified date.

If bail is not granted by the police, then the police will have a duty to bring the accused to the Magistrates' Court as soon as practicable (normally in the following morning). The accused may apply to the Magistrate for bail at the first hearing. If bail is refused by the Magistrate, the accused may apply to a judge of the Court of First Instance of High Court for the grant of bail.

Bail should generally be granted by the court 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. For more details on this matter, please refer to section 9D and section 9G of the Criminal Procedure Ordinance.

8. If I have been ill-treated by the police (such as illegally entering a private property and coercing a confession), how can I lodge a complaint against the police?

Complaints can be lodged with the Complaints Against Police Office (CAPO) in the following ways:

• Attend the report room of any police station;
• Make an appointment through the complaint hotline at 2866 7700 to lodge a complaint to the CAPO in person;
• Call the complaint hotline at 2866 7700 or by fax to 2200 4460 or 2200 4461;
• By post to the Complaints Against Police Office, Police Headquarters, 1 Arsenal Street, Wan Chai;
• Use the Complaint Against Police e-Report form online; or
• Use the 'Complaint Against Police' function at the ‘e-Report Centre’ of the Hong Kong Police Mobile App.

On completion of the investigation, CAPO must pass the results to the Independent Police Complaints Council (IPCC) for endorsement. The IPCC is completely independent of the Police. The IPCC will review each case received from CAPO by examining the investigation files and other relevant documents. For further information on the complaint procedures, please go to the CAPO's webpage.

It is also possible for you to make a civil claim against the police for compensation. However, you should first seek legal advice before you decide whether or not to take any legal action.

IV. Powers of Independent Commission Against Corruption (ICAC)

The Independent Commission Against Corruption was set up in 1974 to fight corruption through effective law enforcement, education and prevention. The ICAC functions as an independent organ of the public service and is headed by a Commissioner who is directly responsible to the Chief Executive of the HKSAR Government. The general powers and duties of the ICAC are set out in the Independent Commission Against Corruption Ordinance (the ICAC Ordinance, Cap. 204) . The offences that the ICAC is empowered to investigate are those set out in the ICAC Ordinance, the Prevention of Bribery Ordinance (Cap. 201), and the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554).

1. Under what circumstances can the ICAC officers enter a private premises and search for items inside? Must the ICAC officers obtain a warrant beforehand?

Entry and search with a court warrant

The ICAC officers can enter and search any premises with a search warrant.

According to section 17 of the Prevention of Bribery Ordinance, an ICAC officer may apply to a Magistrate or a Judge of the High Court for a warrant to search any private premises. In order to obtain the search warrant, the officer must satisfy the c ourt that there are reasonable grounds to believe that there is evidence of an offence under the Prevention of Bribery Ordinance inside such premises. In urgent cases, the search warrant can be granted by the Commissioner of the ICAC instead of the court. Where the Commissioner reasonably believes the making of an application for the issue of such a warrant would seriously hinder the investigation, he may issue his own search warrant to direct his ICAC officers to enter and search the premises or place.

A further power of search can be found in section 10B of the ICAC Ordinance. A search warrant may be granted by a Magistrate for the purpose of entering and searching premises or places for evidence of specified offences under section 10 of the ICAC Ordinance (e.g. offences under the Prevention of Bribery Ordinance or the Elections (Corrupt and Illegal Conduct) Ordinance; or offences of theft, fraud, false accounting etc ).

Entry and Search without any court warrant

However, it is not always necessary for the ICAC officers to obtain a search warrant. Under section 10(3) of the ICAC Ordinance, the ICAC officers may enter and search private premises without warrant for the purpose of arrest ing a person if they reasonably believe that person is in side the premises . The officers must first identify themselves and state the purpose of the search. The officers must also produce their warrant cards upon request.

Otherwise the ICAC officers have no general power to enter into private premises without the consent of the owner or occupant.

2. Under what circumstances can the ICAC officers arrest a person? Must they obtain a warrant of arrest beforehand?

A warrant of arrest is not required. The ICAC officers may arrest a person they reasonably suspect of being guilty of an offence under the Independent Commission Against Corruption Ordinance, the Prevention of Bribery Ordinance, or the Elections (Corrupt and Illegal Conduct) Ordinance. What constitutes reasonable suspicion in a particular case is to be judged on an objective basis with valid reasons.

Examples of these offences include: a civil servant accepted advantages without the Chief Executive's permission when performing an official duty, or staff of a private company released tendering information to bidders in return for some advantages and such information has assisted those bidders in securing a contract. If you want to view more examples concerning corruption, please visit the ICAC webpage.

The ICAC officers have a duty to explain to the person under arrest the reason for the arrest, and to inform the arrested person that he has a right to remain silent. Hence, the arrested person can choose not to answer any questions asked by the ICAC officers .

It should be noted that a person is not under arrest if that person is merely asked by the ICAC officers to assist in their investigation or to go to the ICAC Office. Unless the person is formally arrested, he is free to decide whether or not to go with the ICAC officers, and is free to leave at any stage.

3. What will normally happen after a person is arrested by the ICAC officers? What are his rights during detention and questioning by the ICAC officers?

Detention

A person arrested by the ICAC may be taken to a police station and dealt with under the Police Force Ordinance, or may be taken to an ICAC office. If an arrested person is taken to an ICAC office, he may be detained there if an officer of the rank of a Senior Commission Against Corruption Officer or higher considers it necessary for the purpose of further inquiries.

The rights of a person in ICAC custody can be found in the Independent Commission Against Corruption (Treatment of Detained Persons) Order (Cap. 204A) . According to the Order, a "Notice to Persons Detained" setting out the general rights of a detained person must be conspicuously displayed in every detention room. These rights include:

• Requesting that the detained person's relatives or a friend be informed of the detention;
• Communicating and consulting with a legal adviser (unless unreasonable delay or hindrance will likely be caused to the processes of investigation or the administration of justice);
• Asking to be released on bail;
• Being provided with drinking water upon request, adequate food and refreshment as well as medical care if necessary.

Detailed contents of the Notice to Persons Detained can be found here.

An arrested person may be released from custody on the deposit of a reasonable sum of money. The amount of such a sum is determined by a Senior Commission Against Corruption Officer or an officer of higher rank. A person may also be released on bail by providing such recognizance, with such sureties, as the senior officer deems necessary. Persons released on bail must further attend the offices of the ICAC as specified or appear before a M agistrate as required. Failure to attend will result in the forfeiture of the deposited sum or recognizance.

If bail is refused, the detained person must be brought before a Magistrate as soon as practicable and in any event within 48 hours after arrest.

Questioning and Interviewing by ICAC officers

The questioning of the detained person is usually done by the ICAC officers by way of a video-taped interview. Before questioning and interviewing the detained person, the ICAC officers must caution that person by saying, "You are not obliged to say anything unless you wish to do so but whatever you say will be put into writing and may be given in evidence." The detained person has a right to remain silent, and may therefore choose whether or not to attend the video-taped interview or answer any questions posed by the ICAC officers . The detained person may also request to obtain legal advice before deciding whether or not to answer any questions. The detained person may also have his lawyer present during the questioning and taking of any statement. Upon conclusion of the interview , the ICAC officers must provide the interviewee with a copy of the taped interview or the written statement (as the case may be).

4. I suspect that someone has committed an offence involving corruption or bribery. How can I report this to the ICAC?

You can lodge the complaint in person at the ICAC Report Centre (24-hours service) or tele phone its hotline at 2526 6366. The address of the ICAC Report Centre is G/F, 303 Java Road, North Point, Hong Kong. For more details, please read the FAQs provided by the ICAC.

5. If I was ill-treated by ICAC officers, how can I lodge a complaint against the ICAC?

Complaints against the ICAC are handled by an independent ICAC Complaints Committee chaired by an Executive Council member. You may lodge the complaint in person, by post or by telephone. The contact details of the ICAC Complaints Committee are: Room 2559, 25/F, Central Government Offices, 2 Tim Mei Avenue, Tamar, Hong Kong (Tel: 3655 5503).

You will be informed of the outcome of your complaints after the investigations are completed and a decision is made. For further information on the complaint procedures, please go to the ICAC webpage.

It is also possible for you to make a civil claim against the ICAC for c ompensation. But you should first seek legal advice before you decide whether or not to take any legal action.

V. Court procedure - criminal cases

The Department of Justice of the HKSAR Government is responsible for the conduct of criminal prosecutions in Hong Kong. In the discharge of that function the Department enjoys an independence which is guaranteed by Article 63 of the Basic Law. Not all persons suspected of criminal offences will automatically be prosecuted. No prosecution should be made unless in the professional judgment of the prosecutor, there is sufficient evidence so that there is a reasonable prospect of a conviction. If there is sufficient evidence, the prosecution further needs to consider whether it is in the public interest to prosecute. In determining where exactly the public interest may lie, the prosecutor must examine all the factors and the circumstances (e.g. the nature of the offence, the age and mental state of the suspect, the likely penalty upon a conviction). For example, it may not be in the public interest to prosecute if the consequence of prosecution is out of proportion to the gravity/seriousness of the offence. In general, the more serious the offence, the more likely it is that the public interest will require a prosecution. For more details of the prosecution policy, please see "Prosecution Code" issued by the Department of Justice.

In Hong Kong , any person charged with an offence shall be presumed innocent until that person is convicted by the court. The presumption of innocence is the most basic right of an accused person, given under the common law and Article 87 of the Basic Law of Hong Kong. In general, the court will first ask the accused person whether he or she pleads guilty to the offence ( Note: The person being charged is formally called "the accused person" in the District Court or the High Court, and such a person is normally referred to as "the defendant" in the Magistrates' Courts. To avoid confusing laymen, persons being charged in all courts are collectively called "the accused persons" or "the accused" in this topic.). If the accused person pleads guilty, the court will convict that person without a trial so long as the summary of facts prepared by the prosecution and agreed by him/her are sufficient to show the commission of the offence. If the accused person pleads not guilty, then a trial becomes necessary to determine whether or not that person is guilty of the offence.

At the trial, the burden of proof is generally on the prosecution, which has to convince the court that the accused person is guilty of the offence beyond reasonable doubt . That means the prosecution must present sufficient evidence to the court so that the court can be sure that all the ingredients of the offence charged against the accused have been proven. If there is any reasonable doubt that a particular ingredient of the offence may not have been proven, then the accused person should be acquitted of the offence. The accused person is not required to prove that he or she is not guilty, and can decide whether to give evidence at the trial or not.

Criminal trials in Hong Kong are conducted in open court where the public and the press can attend. They are either heard by a Magistrate or a District Court Judge alone without a jury, or by a High Court Judge sitting together with a jury.

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.

1. I have heard of "summary offences" and "indictable offences". What are the differences between the two and which court can try these offences?

Broadly speaking, “summary offences” represent the less serious offences, while “indictable offences” represent the more serious offences. Summary offences can only be tried in Magistrates’ Courts. The only exception is that a summary offence can be tried in the District Court if the accused person is also charged with an indictable offence. Examples of summary offences include littering, careless driving, etc.

If the legislative provision creating the offence contains the words “upon indictment” or “on indictment”, then the offence is an indictable offence. Most indictable offences can be tried in the Magistrates’ Courts, the District Court or the Court of First Instance of the High Court. The choice of venue of the trial of an indictable offence rests on the prosecution (section 14 of the  Criminal Procedure Ordinance, Cap. 221), who will normally consider the complexity of the case and the likely sentence to be imposed on the offender upon conviction. For example, if the likely sentence is an imprisonment for 4 years, then the prosecution will in theory choose the District Court for the trial, as it can impose a maximum sentence of 7 years. Magistrates’ Courts are not suitable for the trial of such an offence because their maximum sentencing power is only 2 years’ imprisonment for a single offence.

There are some serious indictable offences which cannot be tried in the Magistrates’ Courts. They are set out in Part I of the Schedule 2 to the Magistrates Ordinance (Cap. 227). The most serious indictable offences set out in Part III of the Schedule 2 to the Magistrates Ordinance can only be tried in the Court of First Instance of the High Court with a jury (e.g. murder or manslaughter).

The time limit for the prosecution of a summary offence is generally within 6 months of the commission of the offence (unless otherwise specified in the legislation creating the offence). For an indictable offence, there is no formal time limit for the commencement of a prosecution.

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:

1. 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).

a. If the court date specified on my bail sheet falls during a time when I am not in Hong Kong, can I request a change of date? If so, what is the process for making such a request?

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:

1. give evidence personally and call other witnesses;
2. choose not to give evidence personally but only call other witnesses to give evidence; OR
3. 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

1. 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?
2. How to prepare for an appeal?
3. If I am acquitted, can the prosecution appeal against the acquittal decision? 
4. If I am convicted, can the prosecution appeal against sentence?

VII. Case illustration

There is an endless list of situations relating to possible criminal offences and procedures. The following scenarios are merely examples:

1. I have committed the criminal acts (e.g. stolen a watch, wounded a person or whatever) and I have told my lawyer all the facts. However, I do NOT want to plead guilty to the offence. Will my lawyer still defend me at trial, or only say something in mitigation? Is my lawyer bound to report my offence to the Court after I tell him the truth?

Under the Hong Kong legal system, the burden is on the prosecution to provide satisfactory evidence to the Court to prove that you are guilty of the offence beyond reasonable doubt. Hence, your lawyer may still defend you on the basis that the prosecution cannot satisfy this burden of proof by testing the prosecution’s evidence. However, your lawyer must also follow some professional ethics and he can only run your defence on a limited basis, as he cannot conduct your defence on a basis that is contrary to what you have told him. For example, your lawyer can challenge a prosecution witness’s memory, but he cannot put forward a defence that you were not present at the scene of crime or that it is another person who committed the offence.

While you have the right not to plead guilty and ask your lawyer to continue to defend you, you should consult your lawyer whether it is in your best interest to do so. Given what you have told your lawyer, he can only run your defence on a rather limited basis, and this may affect the chance of a successful defence. If you are convicted by the Court after trial, you will not receive the normal one-third discount on sentencing upon a guilty plea (see Part V Section I of this topic). You should therefore carefully consider whether you wish to plead guilty to the charge and ask your lawyer to mitigate on your behalf.

All information that you have told your lawyer would be kept strictly confidential. Without your consent, your lawyer cannot tell the Court or others that you have committed the criminal acts. 

2. I am facing a criminal charge and I have to attend the hearing soon. Can I choose not to give oral evidence in Court? What are the essential things that I need to be aware of if I choose to give evidence?

Under Article 11(2g) of section 8 of the Hong Kong Bill of Rights Ordinance and Article 39 of the Basic Law, you have the right not to be compelled to testify against yourself or to confess guilt – the right to silence. By virtue of that right, you can choose not to give evidence at trial and the judge/jury shall not draw inference against you because you exercise this right.

Whether or not to give evidence is an important decision, about which you should consult with your legal representative and carefully think. As the specifics of each case vary, it is difficult to say in general whether it is advisable to testify and the things to be born in mind when you testify in court.  

3. I am just a witness who is going to give evidence in Court. Will I incur criminal liability if I intentionally or carelessly give false statements?

Any person sworn as a witness who makes statements in a judicial proceeding which he knows to be false or does not believe to be true commits the offence of perjury under section 31 of the Crimes Ordinance (Cap. 200of the Laws of Hong Kong). A conviction for perjury is punishable by a fine and an imprisonment up to 7 years.

In case you are not sure about an answer, simply say so.

If you want to know more about the formalities for giving evidence in Court, you can visit the Hong Kong Police webpage.

4. I accidentally knocked down a lady by my car and she subsequently died. Will I be charged with manslaughter or murder or other offences?

If it is an accident and there is no evidence that you have any intention to injure that lady, then you will not be charged with murder or manslaughter. However, if the accident occurred as a result of your serious fault in driving, then you may be charged with dangerous driving causing death under section 36 of the Road Traffic Ordinance (Cap. 374 of the Laws of Hong Kong). A person is considered to be driving dangerously if the way that person drives falls far below what would be expected of a competent and careful driver, and it would be obvious to the competent and careful driver that driving in such a way would be dangerous. It is also dangerous driving where it would be obvious to the competent and careful driver that the motor vehicle's condition was so bad that it would be dangerous to drive such a vehicle. The offence of dangerous driving causing death carries a penalty of a fine (of up to HK$50,000) and imprisonment for up to ten years. Such a driver shall also be disqualified from driving for a period of not less than two years for the first such offence, and not less than three years for any subsequent offences.

If you were only careless at that time, then you may be charged with careless driving under section 38 of the Road Traffic Ordinance. A person is considered to be driving carelessly if that person drives without due care and attention i.e. failing to exercise the degree of care and attention that a reasonable, competent and prudent driver would exercise. A person is also considered to be driving carelessly where that person drives without reasonable consideration for other persons using the road. The offence of careless driving carries a maximum penalty of an imprisonment for 6 months.

5. I have previously claimed that I was a member of a triad society but in fact I was not. I just wanted to threaten someone. Have I committed an offence?

Under section 20(2) of the Societies Ordinance (Cap. 151 of the Laws of Hong Kong), any person who is, acts, professes or claims to be a member of a triad society is guilty of an offence. Hence, you might have committed this offence by claiming to be a member of a triad society even though you are not actually a member. Even an empty threat of belonging to a triad society is an offence. You may also be guilty of criminal intimidation.

6. I have some overdue payments in respect of a bank loan. Recently, I have received many telephone calls from a person claiming to be collecting the payments on behalf of the bank. He used some foul language but did not make any threats to kill me. Would such conduct constitute "criminal intimidation" or some other criminal offence?

Under section 24 of the Crimes Ordinance (Cap. 200), a person commits criminal intimidation if he threatens any other person with either, any injury to the person, reputation or property of that person, or to that of a third person or the reputation or estate of a deceased person, or with any illegal act and such person, with the intention to (1) alarm the person so threatened or any other person; (2) cause the person so threatened or any other person to do any act which he is not legally bound to do; or (3) cause the person so threatened or any other person to omit to do any act which he is legally entitled to do. 

Criminal intimidation is therefore not limited to death threats. If the person claiming to collect on behalf of a bank threatens, with the requisite intent, to harm your reputation or property if you do not repay a loan, then his conduct may constitute criminal intimidation. 

Notably, there is no requirement that the threat must be made face to face. For example, there is case law where threats made on the telephone were regarded as sufficiently constituting criminal intimidation.

However, the mere use of foul language without any threatening words would not be criminal intimidation. 

Alternatively, he may have committed the offence of sending message by telephone which is grossly offensive or is of an indecent, obscene or menacing character under section 20 of the Summary Offences Ordinance (Cap. 228).

7. I am facing a criminal charge and I am having difficulty finding a defence witness. However, I remember that there was a teenager at the scene. That teenager appears to be under the age of 16, but his testimony may prove that I am not the offender. Can I call him as my defence witness in Court?

The law does not prevent young people under the age of 16 to be witnesses in legal proceedings. With reference to section 3 of the Evidence Ordinance (Cap. 8 of the Laws of Hong Kong), only persons of unsound mind and who appear incapable of answering questions about the relevant case shall be incompetent to give evidence in any proceedings.

You can try to ask that teenager to be your defence witness. You may also issue him a witness summons to ensure that he attends court. A witness summons is a document (issued by an order of a court) that compels a witness to attend a trial.

8. I am the victim of a crime. I know that the offender has been convicted and sentenced to prison. Do I have any right to know when the offender will be released from prison? I am afraid that the offender may take revenge on me.

As a victim of the crime, you have a right to ask the Commissioner of Correctional Services (either directly or through the police officer who handles your case) to inform you when the offender will be released from prison. You must however provide the Commissioner your contact address and telephone. If you have proper reason to suspect that the offender may take any revenge on you, you may seek help from the police. If you want to know more about a victim's rights and obligations in a criminal case, please see the Victims of Crime Charter issued by the Department of Justice.

A. Powers to stop, search and detain

As an ordinary citizen, it is possible that you might be stopped, questioned and even searched by the police while you are walking on the street. You may have questions as to why the police would do this to you, or under what circumstances the police can exercise such powers.

This section contains some general information about police powers in the following areas:

• stopping and questioning a person;
• searching a person;
• entering private premises, searching and seizing items inside;
• arresting a person; and
• detaining a person at a police station and taking statements

B. Seizure and detention of property

With a warrant issued by a Magistrate, the police can search for, take possession of and detain any article (e.g. newspaper, book, documents) for the purpose of investigating and prosecuting crime. During the investigation, the articles may be disclosed to other public authorities or communicated to others for the purpose of investigation and prosecution. However, they will not be shared to private individuals for private purposes. After the investigation and prosecution, the seized articles must be returned to their true owner.

C. Powers of entry of premises, search and seizure

2. What would be the consequences if I refuse their entry?

If you are simply asked by police officers for consent to allow them entry into your premises, you may choose to refuse. However, if the police officers produce a search warrant issued by a Magistrate, or demands that you open the door on the ground that they reasonably believe a person to be arrested is inside your premises, then you must cooperate. Otherwise, you may be guilty of the offence of resisting or obstructing the police officers in the due execution of their duties and they may also break open the door for their entry.

3. Can the police seize anything inside my flat?

The police officers may be authorised under the search warrant to take possession of articles or documents inside the premises. Moreover, following the arrest of a person on the premises, the police officers may take possession of any item they find on the person or inside the premises which they reasonably suspect to be of value to the investigation of the suspected offence.

D. Covert surveillance and inception of communication

The police may intercept anyone’s communication or perform covert surveillance under the authorisation of a panel judge or other executive authorisation (Sections 4, 5, 8 and 20 of Cap. 589 of the Interception of Communications and Surveillance Ordinance).

E. Powers of arrest

3. What are the consequences if I resist arrest?

It is an offence under section 36 of Offences against the Person Ordinance (Cap. 212) for a person to assault, resist or deliberately obstruct the police in the execution of their lawful duties. This offence may be tried summarily or upon indictment. The maximum penalty for this offence is imprisonment of up to 2 years.

Alternatively, if you assault or resist any police officer acting in the execution of his duty, you may be charged with the lesser offence under section 63 of the Police Force Ordinance (Cap. 232). This offence is triable only summarily and carries a maximum penalty of a fine at HK$5,000 and 6 months’ imprisonment.

4. What should a person do if they believe they have been wrongfully arrested?

When arresting someone, the police officer must inform the arrestee of the offence or the crime for which he is suspected to have committed in simple and non-technical language, and in a language that he understands. If one believes that he or she has been wrongfully arrested, it is advisable to seek independent legal advice immediately to protect his/her best interest. A potential complaint of wrongful arrest may affect the ongoing investigation in question. The relevant person may consider lodging a complaint to the Complaints Against Police Office and/or even seeking compensation through civil actions.

5. What are the procedures after being arrested?

As per section 51 of Police Force Ordinance (Cap. 232), an arrested individual must be taken to the officer in charge of a police station or a police officer authorised in that behalf by the Commissioner. The Duty Officer will examine the reasons for your arrest. If the duty officer is not satisfied with the legality of the arrest or that you should be detained further, a release will be ordered.

If the duty officer finds your arrest lawful, you will be registered as being arrested, photographed for identification and your fingerprints will be taken for police records. The confirmation of your arrest and personal particulars will be made in the Case Management and Investigation System. At this point you are in police custody and are entitled to a number of rights set out in a document called “Notice to Persons in Custody”, further detailed under Question 4 of  “G. Questioning and Treatment of Witnesses and Detained Persons” section. You will also be subject to questioning and asked to make statements after the officer cautions you to the effect of your answers.

6. After arresting a young person, will the law enforcement officers take the initiative to notify the parents or teachers?

According to the Police General Orders, the Police should, when arresting a child or young person, take all reasonable procedures to inform his parents or guardian. The Police will, as far as reasonably practicable, request an “appropriate adult” to accompany the arrested child or young person at the police station when questioning him. An "appropriate adult" refers to:

(i) a relative, guardian or other person responsible for care or custody of the arrestee;

(ii) someone who has experience of handling a person with a particular special need but who is not a police officer nor employed by the Police; or

(iii) failing either of the above, some other responsible adult who is not a police officer nor employed by the Police.

Hence, the police will take the initiative to contact parents or any other appropriate adult.

7. I only know that my underage son, has been arrested but I don't know which police station he is in, what should I do?

As stated in Question 6, the police is under a duty to make reasonable efforts to locate and inform the parent(s) or guardian(s) of an arrested young person. Where they are unable to get in contact with you, you should consider contacting your lawyer as soon as possible. You can also consider contacting the relevant police station (for instance, the police station close to the area where the incident happened) to make enquiries.

8. Can I leave Hong Kong after being arrested?

It depends on your conditions of bail and the agency by which you are arrested. For instance, if you are arrested by ICAC, according to a section 17A of Prevention of Bribery Ordinance (Cap. 201), a magistrate may, on the application ex parte of the Commissioner, require a person under investigation to surrender any travel document in his/her possession. But if you are arrested by other law enforcement authorities like the police, generally speaking, as long as you can make sure to come back on time to report bail in accordance with the police’s requirement, you can still leave Hong Kong after being arrested.

F. Powers under Organized and Serious Crimes Ordinance (Cap. 455)

Under this ordinance, an authorised officer may obtain a warrant from the Court of First Instance or the District Court to search specified premises to investigate an organised crime or any proceeds from the offence of an organised crime. In addition, the Secretary for Justice can apply an order from the Court of First Instance inviting someone to provide relevant information or materials to the police about a matter of organised crime under investigation.

G. Questioning and treatment of witnesses and detained persons

1. If the police merely ask me to go to a police station to assist with their investigation, am I obliged to go? Can they detain me inside the station?

When you are simply asked to assist in an investigation, you are under no legal obligation to assist or go to the police station. You are free to decide whether you wish to assist on a voluntary basis, and you may choose to leave at any time. However, if the police formally arrest you, then you must go with them to the police station (see Question 2 of Part E on your rights upon an arrest).

3. Is it a must to be detained for 48 hours after being arrested?

No.

Upon completion of preliminary investigation, the Police will, depending on the circumstances of the case, consider:

 (1) charging the arrestee, and detaining the arrestee until he or she is taken to appear before the court, or releasing the arrestee on bail pending his or her appearance before the court.  The arrestee will generally not be detained for more than 48 hours;

 (2) in case the Police cannot complete the investigation into the case forthwith, releasing the arrestee on bail, and the arrestee shall appear at the police station at a specified time subsequently; or

 (3) releasing the arrestee unconditionally.

Where a warrant for your arrest and detention under any law relating to deportation is applied for while inquiries are being conducted, you may be detained for a period not ordinarily exceeding 72 hours after your arrest.

9. How are police interviews conducted?

Police interviews are an integral part of criminal investigation. The police is obliged to caution you. You have the right against self-incrimination and so may choose to remain silent and not give statements. During questioning, the police must observe the Rules and Directions for Questioning of Suspects and Taking Statements and any breach will be taken into account when deciding whether cautioned statements are admissible as evidence.

At all times you have the right to representation and legal advice prior to and during the interview. Please refer to Question 4 for more information as to rights when making statements.

10. The police took a statement from me as a witness. Later, I was arrested and charged. Can the prosecution rely on my statement?

Generally speaking, the defence would argue that such kind of witness statement shall not be admissible evidence against the defendant (subject to the content, nature of the statement as well as how the prosecution would rely on it). If the prosecution intends to rely on that statement, the burden is on the prosecution to satisfy the court of the admissibility of the statement.

11. I found that I made a mistake when I was making a statement, but I have already signed the document, what can I do?

You are entitled to make amendment or clarification to your statement.

For written statements, there is a concluding line at the end of every statement stating that the author of the statement may make amendments, additions and redactions to their statements. It is important to note that these changes will be recorded.

When you realized you made a mistake to your statement, you should consider informing the police of your wish to make changes/clarification to your statement as soon as possible. You might need to provide a supplemental statement accordingly.

H. Identification parades

The identification parade (ID parade) is a method of identification used for the witness to identify the suspect. It is not mandatory for the suspect to take part in an ID parade, but there are alternatives for the police to adopt to confirm identification if the suspect refuses to take part in an ID Parade.

1. How are identification parades conducted?

A senior officer of the police (Chief Inspector or above) who is not involved in the investigation of the matter shall conduct the ID parade. The suspect, along with 8 actors that roughly resemble the suspect (e.g. in terms of age, height, ethnicity, etc.), will be placed in a one-way viewer room. Then, the witness should make every effort to identify the suspect with due consideration and certainty. The witness can also request the actors and the suspect to have words and phrases uttered for voice identification. Note that the witness will neither contact nor see any of them in any way prior to the ID parade, and the officer shall not make any suggestion or implication of the suspect’s identity to the witness. The process of ID parades is usually video recorded, and the suspect has the right to have a legal representation present at the parade.  

2. What are the implications if a witness cannot identify the suspect correctly?

If the witness fails to make a positive identification, the suspect may not be charged and may avoid the risks involved in a trial. Even if the witness is unable to identify the suspect, the police may not release the suspect unconditionally right away, instead, the police may release the suspect on bail and ask him/her to wait for further notice from the police.

I. Fingerprints, blood, body samples, and photographs

Do the police have powers to take these from the arrestee?

Under section 59 of the Police Force Ordinance (Cap. 232), fingerprints and photographs are considered identifying particulars which upon arrest may be taken by any police officer and the police have a general power to take photographs, finger/palm-prints, weight and height from any arrested person.

Under section 59A of Police Force Ordinance, blood is considered an intimate sample and appropriate consent from the arrestee would be needed in order for the sample to be taken for forensic analysis. In addition to the arrestee’s consent, authorisation from a police officer of or above the rank of superintendent as well as magistrate under section 59B is needed.

Under section 59C of Police Force Ordinance, non-intimate body samples like head hair, swabs taken from the mouth, and saliva may be taken from an arrested person with or without their consent for forensic analysis. Such collection must be authorised by a police officer of or above the rank of superintendent. If the arrested person does not consent, the authorities can use reasonable force to extract samples from him under sections 59C(4)(e) and 59C(8).

J. Laying charges

1. What do the police do when they decide to charge the arrestee?

When the police decide to charge a person, he/she will be brought before a police officer of the rank of inspector or above. That officer will read out the offence from a charge sheet. The charge sheet will normally include the location of the police station, name of the OC Case (officer in charge of the case), interpreter’s name (if applicable), language/dialect, time and date and the name of the defendant. After reading out the charge, the officer will ask the defendant whether he/she understands and whether he/she wishes to say anything.

After formally laying charge(s) against the defendant, the police will decide on the date of the first appearance in court and whether bail would be granted to him/her. If police bail is not granted, the defendant shall be brought before court as soon as possible and normally the first court appearance will be on the next working day (including Saturdays).

2. What information does the arrestee receive from the police?

As mentioned above, the police must present a charge sheet to the arrestee. The charge sheet includes details such as the date, time, and location of the alleged offence(s), as well as the specific legal provisions under which the charges are being brought. However, the Prosecution can decide whether to proceed with the charges initially drafted by the police in the charge sheet, amend them, or add more charges.

If police bail is granted, a new bail sheet will be issued to the defendant as well.

Additionally, the arrestee must also receive a copy of the Brief Facts, which specifies the Prosecution’s allegations against the arrestee. For the timing of receipt, the Brief Facts are normally provided to the defendant when he/she attends the first appearance at the Magistrates’ Courts.

3. On the day of reporting to the police station during bail, if the police decide to prosecute the suspect, will he be escorted to court immediately?

As above-mentioned, if the police decide to prosecute the suspect, when he/she reports bail to the police station, he/she will be informed that he/she will be charged. After formally laying charge(s) against the arrested person, the police will decide whether bail would be granted to him/her.

If police bail is not granted, the defendant will be detained in custody and shall be brought before court as soon as possible and normally the first court appearance will be on the next working day (including Saturdays).

If police bail is granted, the police will assign a date for the defendant to appear at the Magistrates’ Court, which will normally be several days after the charge. 

K. Bail, detention and release

1. Police bail

When a person is being investigated by the police for a potential crime, they may be granted police bail. This means that they are allowed to be released from custody on bail either during the investigation or after being formally charged with a criminal offence. The police have the authority to grant bail, and this power is outlined in the Police Force Ordinance.

If bail is granted during the investigation, it is given until the date when the suspect is required to report to the designated police station. On the other hand, if bail is granted after the person has been charged, they must appear at a specific Magistrate's Court on a designated date.

According to section 52(1) of the Police Force Ordinance, the officer in charge of the police station where the arrested person is held has the responsibility to consider whether to grant bail. The officer should consider the nature of the offence, the arrestee’s background history and personal circumstances including but not limited to factors such as previous instances of absconding from bail or committing offences while on bail. The final decision of granting police bail or not should be based on a reasonable consideration of all relevant factors.

After considering all the relevant circumstances, the officer in charge of the police station will make the decision to grant bail (on the condition of appropriate bail terms) or to refuse to grant police bail and bring the arrested person before a Magistrate as soon as possible.

Refusal to renew bail

If an arrested person has been granted police bail but decides to refuse to renew bail, the police will be forced either to charge or to release him/her. The arrested person should be reminded of the risks that (1) if the Police decide to immediately lay charge, he or she might be held in a police cell until being taken to court for the first appearance, and that (2) if the Police decide to release him/her, they could always re-arrest and charge him/her at any time.

Absconding

When bail was granted by the Police or a court but the arrested person fails to show up as required, he or she will be regarded as “absconded”. The police may put his/her name on the wanted list and apply for an arrest warrant. Additionally, absconding from court bail in itself can constitute a separate offence. If a person has a record of absconding, it will be extremely difficult to apply for bail at a later stage.

2. Detention pending first appearance

Pursuant to section 51 of the Police Force Ordinance, an arrested person should be taken immediately to the police officer in charge of the police station, without any unnecessary delay.

The arrested person must be informed of their rights and be provided with a written copy of these rights, constituting a “Notice to Persons in Custody”. The arrested person will first go through procedures like identification, fingerprinting, photographs, and so on. The detainee's property will be documented and the police have the right to seize the items relevant to the investigation (if applicable).

Once processing is completed, the investigation stage begins, led by the OC Case (officer in charge of the case). This stage involves cautioning, interviewing, collecting forensic samples, conducting identification parades and so on.

Throughout the detention, the detainee has rights, including the right to silence, the right to legal representation, and the right to be brought before a Magistrate promptly if not released. They also have the right to medical treatment, rest periods, and refreshments. In case of ill-treatment, the detainee has the right to file a complaint, and any relevant injuries can be photographed as evidence.

3. Release

After the investigation, the police will decide whether to charge or release the arrested person.

If the police release the arrested person on police bail, normally the arrested person will be asked to provide a certain amount of cash bail and to return to the police station on a later date to report bail.

If the police decide to release the arrested and return the bail money to the arrested person, the arrested person might be informed that the investigation is still ongoing /has been terminated. 

4. Habeas corpus

An allegedly wrongful deprivation of personal liberty may be addressed by a writ of habeas corpus ad subjiciendum, commonly known as a habeas corpus. This writ allows the Court to demand the appearance of a person who claims to be unlawfully detained and examine the legality of their detention. If the Court finds that there is no valid reason for the person's loss of liberty, they can order their release.

Habeas corpus is an exceptional remedy that is used when regular legal options are not applicable or accessible. It is granted only when there is reasonable cause shown for its issuance. While the writ is not typically used to challenge a court's denial of bail, it can be employed if someone has been excessively detained by the police without being charged.

B. Types of criminal offences

1. 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?

You can lodge an appeal against either or both the conviction and the sentence. You must however bear in mind the time limits for filing the appeal documents, and consider carefully whether or not you have proper grounds for the appeal. Extension of these time limits will only be given in special circumstances. 

For an appeal against a Magistrate's decision, the time limit is 14 days from the date when the Magistrate passed the sentence, and the appeal will be made to the Judge of the Court of First Instance of the High Court. Alternatively, you may within the 14 days' period apply to the Magistrate who convicted you for a review of his decision. If the review is unsuccessful, you may then appeal to the Judge of the Court of First Instance within 14 days from the review decision. For an appeal against the decision of the District Court or the Court of First Instance, the time limit is 28 days and the appeal goes to the Court of Appeal of the High Court. Technically, the Court of Appeal will first decide whether or not to grant leave (i.e. permission) to appeal before hearing the actual appeal. However, the Court of Appeal will often combine the application for leave and the actual appeal together at one hearing. 

You are strongly advised to seek legal advice before making a decision regarding the appeal. If you proceed with an appeal without considering carefully, there is a possibility that you may be worsen off. For example, if you appeal against the sentence, the higher court which hears the appeal may impose a heavier sentence if it takes the view that the original sentence is too lenient. Moreover, if the Court of Appeal considers that the appeal is unmeritorious (or unreasonable), it has the power to order that certain period that the convicted offender spent in prison between his conviction and the appeal be disregarded in calculating his original sentence. 

2. How to prepare for an appeal?

You should start with your intended appeal by filing and serving a Notice of Appeal within the time limit. This Notice should set out at least the main grounds of appeal.  

Afterwards, the Registrar will send an initial appeal bundle to all parties concerned when it is ready.  

If the appellant or the respondent would like to incorporate additional materials to the appeal bundle, leave from the Court is required. In particular, if the appellant or the respondent would like to obtain the trial transcripts and to insert them to the appeal bundle, the court may direct the applicant to provide reasons in support of such kind of application. 

An appeal judge may give directions on the timeframe for parties to file the perfected grounds of appeal and skeleton submissions. The judge may also direct "for mention" hearings to ensure the case is ready. When it is ready, a date will be fixed for hearing the leave to appeal. 

After hearing the appeal (or dealing with it on paper) the appeal judge(s) may dismiss or allow an appeal orally and / or reserve written judgment to be handed down or delivered on a date to be fixed. 

3. If I am acquitted, can the prosecution appeal against the acquittal decision?

Yes. The common routes include: 

1. Review under section 104 of the Magistrates Ordinance

The Prosecution can request a review of a Magistrate's decision regarding this conviction. It is not an appeal but an application to reconsider the decision.  

Procedure-wise, the Prosecution must submit a written application within 14 days after the Magistrate's decision. If the review decision is unfavorable, the Prosecution can still appeal it under sections 105 of the Magistrates' Ordinance.  

2. Appeal by way of case stated

For section 105 of the Magistrates’ Ordinance (for cases at the Magistrates’ Court level): 

The Prosecution has the right to appeal a Magistrate's decision through a "case stated". When appealing through a case stated, the Prosecution argues that the Magistrate made a legal mistake or exceeded their authority. This type of appeal focuses on legal questions and does not involve reevaluating all the evidence. The Court of Final Appeal is limited to the information provided in the stated case and cannot consider additional arguments or issues. 

The Prosecution must submit a written application within 14 days of the Magistrate's decision, using Form 95 of the Magistrates (Forms) Rules (Cap. 227C). However, the Prosecution cannot use this section to appeal against a Magistrate’s factual findings. 

For section 84 of the District Court Ordinance (for cases at the District Court level): 

Under this section, following an acquittal at the District Court, the Prosecution can use the appeal by way of case stated procedure to appeal to the Court of Appeal. This appeal must be on a question of law only against a verdict or an order of acquittal. The Prosecution can also use this section to appeal against an order quashing or dismissing a charge for any defect or lack of jurisdiction.  

The Prosecution must apply for its appeal in writing to the Judge in the District Court within 7 clear days after the Court makes the acquittal order. Afterwards, under section 84(c) of the District Court Ordinance, the Court of Appeal may: 

1. Dismiss the appeal; 
2. Reverse the verdict or order; or  
3. Give the relevant directions as it thinks fit.  

For section 81DA of the Criminal Procedure Ordinance (for specified cases at the Court of First Instance level) 

Section 81DA was added into the Criminal Procedure Ordinance in 2023. Before this addition, the Prosecution did not have the right to appeal against acquittals by way of case stated. However, this section only applies to acquittals concerning offences endangering national security that were decided without a jury.  

The Prosecution’s appeal must only relate to matters of law. Generally speaking, the Prosecution must make its appeal application in writing to the Court of First Instance within 14 clear days after the verdict, requesting the Court of First Instance to state a case for the opinion of the Court of Appeal.  

Afterwards, the Court of First Instance must state the case, setting out: 

1. the facts and the grounds on which the acquittal was arrived at or given; and 
2. the grounds on which the acquittal is questioned. 

3. Section 81D of the Criminal Procedure Ordinance

If a defendant is found not guilty after a jury trial at the Court of First Instance, the Secretary for Justice can refer a legal question to the Court of Appeal using section 81D of the Criminal Procedure Ordinance. The procedures for this method are set out in the Criminal Procedure (Reference of Questions of Law) Rules (Cap. 221E).  

4. Appeal following release under section 81E of the Criminal Procedure Ordinance

A defendant can be released from charges under section 16 or section 79G of the Criminal Procedure Ordinance or under section 22 of the Complex Commercial Crimes Ordinance (Cap. 394). Essentially, these three provisions allow a defendant to apply for a discharge on the ground that the evidence available:  

1. being insufficient to establish a prima facie case against him for the offence(s) in question; or  
2. would not be sufficient for a jury properly to convict him.  

Following such an application by the defendant, the Court must evaluate this issue and make directions accordingly.  

However, the Secretary for Justice has the option to appeal the release to the Court of Appeal.  

The Secretary for Justice can appeal based on two grounds:  

1. if there is a legal question that needs to be addressed; OR 
2. if the evidence was enough to establish a strong possibility that the defendant committed the crime.  

If the Court of Appeal agrees with the appeal, they can cancel the acquittal and order a trial to take place in the Court of First Instance. 

5. Appeal against order quashing indictment under section 81F of the Criminal Procedure Ordinance

Under section 81F of the Criminal Procedure Ordinance, which applies to appeals from the District Court or the Court of First Instance to the Court of Appeal, the Prosecution can only make an appeal on a question of law. The Court of Appeal may set aside the quashing of the indictment and order a trial. 

4. If I am convicted, can the prosecution appeal against sentence?

Yes, but in the form of a review instead of an appeal. Specifically, the Secretary of Justice can apply for a review of sentences to the Court of Appeal under section 81A of the Criminal Procedure Ordinance.  

The Secretary for Justice may apply for the review of any sentence (other than a sentence which is fixed by law) passed by any court, other than the Court of Appeal, on the grounds that the sentence is not allowed by law, is wrong in principle, is manifestly excessive, or is manifestly inadequate. 

E. Court bail

Under Part 1A of the Criminal Procedure Ordinance (Cap. 221), the Magistrates’ Courts, District Court, and the Court of First Instance have the power to grant bail to a defendant. There is a presumption of entitlement to bail based on the presumption of innocence, as provided in Article 28 of the Basic Law and Article 5(3) of the Hong Kong Bill of Rights. This means that in most cases, a person should be granted bail. However, this right is not absolute and can be qualified under certain circumstances, as provided in section 9G of the Criminal Procedure Ordinance.

Bail can be granted at different stages of the legal proceedings, such as during the trial or while awaiting sentencing or appeal. There are different powers and procedures for granting bail, depending on the type of court and the circumstances.

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:

1. when the case will be heard at the same Court (section 9D of the Criminal Procedure Ordinance);
2. 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
3. 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.

2. Bail during trial

Principles

As provided in section 9D of the Criminal Procedure Ordinance, a defendant has been granted bail before their trial begins, they can generally expect that the bail will continue throughout the trial. However, the judge might have valid reasons to order otherwise. These reasons might include a high risk that the accused might abscond due to the case going poorly for their defence or a real danger that he may interfere with witnesses or jurors.

Furthermore, there is no fixed rule that bail cannot be renewed once the judge begins his final summary of the case. Each situation is evaluated based on its own circumstances, and the judge considers the risks involved at different stages of the trial.

Procedures

Once the trial has started, whether bail is granted during short breaks or overnight is up to the discretion of the trial judge or magistrate.

Usually, in practice, at the end of each trial date or stage, the judge would extend the defendant’s bail on the same terms.

3. Bail after conviction and pending appeal

Principles

Bail pending appeal is exceptional. Bail pending appeal may not be granted even in cases involving short sentences of imprisonment. Rather than granting bail, the court may direct that the appeal be given a priority listing. The court will consider the circumstances of each case.

In considering an application for bail pending appeal to the Court of Appeal, section 83Z of the Criminal Procedure Ordinance requires the court to have regard to:

1. likelihood of a custodial sentence;
2. likelihood of sentence being completed before the disposal of the appeal or of the appeal being allowed; and
3. any other matter that appears to be relevant.

Procedures

After conviction, the defendant and his/her legal team can apply for bail pending appeal before the trial judge and/or bring the application to the higher court. When applying, in theory, he/she must have already commenced the appeal process.

Following conviction in either the Court of First Instance or the District Court, an accused may, under section 83Q of the Criminal Procedure Ordinance, give Notice of Appeal or, as the case may be, Notice of Application for leave to appeal conviction and/or sentence. Bail pending appeal can be applied for whether the appeal is against conviction and/or against sentence and the application will be initiated by a summons supported by an affirmation from the applicant.

4. Jumping bail

When a person fails to appear to answer court bail, the court may issue a warrant for arrest under section 46 of the Criminal Procedure Ordinance empowering the police to arrest the defendant named in the warrant and bring them before the court. After he is arrested, he may either be bailed to a new hearing date or remanded in custody (more likely) until the new date of hearing. Naturally, when one absconds and does not show up to answer bail, his bail deposit is forfeited.

5. Appeal or review of orders concerning bail

If a defendant's bail application before a Magistrate is rejected, he/she has a right to his bail application reviewed every eight days, which is commonly known as "the eight-day right".

If a defendant has been refused bail by a Magistrate or by a District Judge, he or she can also consider applying for bail to a Judge of the Court of First Instance. Such application is now made by way of a form named Notice of Bail Application or Request for Variation of Bail Conditions to the Court of First Instance. The application is heard by a single Judge of the Court of First Instance sitting in chambers (open to public).

Where a District Judge or a Magistrate has granted bail, the Secretary for Justice may apply to a Judge of the Court of First Instance to review that decision.

F. Remand

1. How to visit persons on remand?

For remand persons in custody to declare their relatives or friends as visitors, they must declare the name and relationship of their visitors. During their custody, they are free to add new or remove existing visitors from the list subject to approval by the Correctional Services Department.

No fees will be charged against persons in custody or their relatives and friends for the visit arrangements.

2. Social visit

For remand persons in custody, they can be visited once per day. Each visit shall not exceed 15 minutes and no more than two visitors, including infants and children. Whilst convicted persons in custody are allowed visits twice per month for no more than 30 minutes each session.

Visitors are not allowed to bring along their personal belongings during the visit. They will be asked to deposit their personal belongings in the storage facilities prior to the visit.

All institutions have specified visiting hours, mostly from 9:00 a.m. to 5:00 p.m.. It is important to note that visitors must be registered 30 minutes prior to the end of the visiting hours.

Visitors on their first visit are required to produce identification for verification and fill in a registration slip with their name, Hong Kong Identity Card number (or valid travel document number), address and relationship with the person in custody to whom they intend to visit. For subsequent visits to the same person in custody, re-registration of address is not required unless the aforesaid information needs amendment.

3. Rights of persons on remand

(i) Are prisoners (people on remand/convicted persons) required to have their hair cut?

There is no specific requirement stipulated by the Prison Rules.

Under rule 199 of Prison Rules, the hair of every prisoner awaiting trial (i.e. people on remand) may be cut but not in such a manner as may alter his appearance.

Under rule 34 of Prison Rules, every convicted prisoner shall obey such directions as regards washing, bathing, shaving and hair cutting as may from time to time be prescribed.

It is worth noticing that, before the Court of Final Appeal judgement of Leung Kwok Hung v Commissioner of Correctional Services [2020] HKCFA 37, Correctional Services Department’s general internal practice was male prisoners were required to have their hair cut, but save for exceptions, a female prisoner’s hair shall not be cut shorter than the style on admission without her consent.

After the Court of Final ruled that there has been discrimination on the basis of sex in the Correctional Services Department’s internal requirement, Correctional Services Department announced their new practice in February 2021 that all convicted prisoners irrespective of gender, shall maintain an appropriate hairstyle as directed. If a convicted prisoner does not wish to have his/her hair cut for personal reasons, he/she may make a request supported by justifications for an individual assessment. According to various news reports, the current practice appears to be that both male and female convicted prisoners are now required to have their hair cut unless specific request was made and approved.

(ii) Are people who are on remand required to undergo rectal exams search of their external orifices, including rectum, nostrils and ears?

Every prisoner (i.e. including people on remand) shall be searched on admission and at such times subsequently as the Superintendent or other officer in charge may direct (for example, after attending a court hearing). An authorized officer of same sex may, for the said purpose, search the rectum, nostrils, ears and any other external orifice of a prisoner.

G. Jury

1. Cases tried by jury

The most serious offences tried in the Court of First Instance must be held with a jury. Usually, these offences include (1) those that are of a serious kind to which the sentencing upon conviction will likely exceed seven years' imprisonment or (2) due to public interest, that the case should be tried before a judge and jurors. Such may include murder, manslaughter, rape, armed robbery, serious drug or commercial fraud offences.

2. Number of jurors

Under section 3 of the Jury Ordinance (Cap. 3), the number of jurors on trial will consist of 7 persons except where the court or the judge orders that the jury will consist of 9 persons.  

Where any juror who has been selected cannot be served, the Registrar of the High Court will select a further juror to complete the number required for the formation of a panel of jurors.  The panel of jurors will attend and serve for a period as directed by the judge.

No juror will be excused from attendance and service for the period as directed unless they have been discharged by the judge to which they have been called to serve as a juror.

Where a member of the jury dies or is discharged by the court, the trial shall proceed in a manner as if the full number of jurors had continued to serve on the jury, and any verdict returned by the remaining jurors, being a unanimous verdict or a majority verdict shall be of equal validity as if it had been returned by a jury consisting of the full number of jurors.

Yet, it must be noted that the jury will need to consist of not less than 5 persons.  

3. How does the jury give its verdict?

Once the jury has reached its verdict, the foreman of the jury will inform the usher, who will inform the Court. The parties will be called back to Court, and the Court clerk will ask the foreman of the jury to state the verdict in open court.

Juries must reach a majority verdict as to whether the accused is or is not guilty of the offence. If the jury cannot reach a majority verdict, the Judge may ask them to retire again and give them more time to discuss, but the Judge must not put pressure on them to reach a majority verdict. If at the end the jury still cannot reach a majority verdict, the Judge will have to dismiss the jury and decide whether or not to order a re-trial before another panel of jury.

For more details about the duty and eligibility of jurors, please go the Judiciary webpage.

4. Majority verdicts

In accordance with section 24 of the Jury Ordinance (Cap. 3), after reasonable consultation, the verdict of a majority must be reached by the jurors so as to determine whether an accused is guilty of the offences charged.  

If it appears to the court that no unanimous or majority verdict could be reached, the court shall discharge that jury and order a retrial by empanelling a new jury, according to section 27 of the Jury Ordinance (Cap. 3).

a) Jury of 7 persons

Where a jury of 7 persons has been sworn, the verdict of a majority consisting of not less than 5 of them will be taken to be the verdict of the jury.  For example, a majority of (i) 7 - 0; (ii) 6 - 1; or (iii) 5 - 2 will suffice.

Where the number of jurors has been reduced to 6, the verdict of a majority consisting of not less than 5 of them will be taken to be the verdict of the jury.  For example, a majority of (i) 6 - 0; or (ii) 5 - 1 will suffice.

Where the number of jurors has been reduced to 5, the jury must be unanimous in their verdict.

b) Jury of 9 persons

Where a jury of 9 persons has been sworn, the verdict of a majority consisting of not less than 7 of them will be taken to be the verdict of the jury.  For example, a majority of (i) 9 - 0; (ii) 8 - 1; or (iii) 7 - 2 will suffice.

Where the number of jurors has been reduced to 8, the verdict of a majority consisting of not less than 6 of them will be taken to be the verdict of the jury.  For example, a majority of (i) 8 - 0; (ii) 7 – 1; or (iii) 6 - 2 will suffice.

Where the number of jurors has been reduced to 7, the verdict of a majority consisting of not less than 5 of them will be taken to be the verdict of the jury.  For example, a majority of (i) 7 - 0; (ii) 6 - 1; or (iii) 5 - 2 will suffice.

Where the number of jurors has been reduced to 6, the verdict of a majority consisting of not less than 5 of them will be taken to be the verdict of the jury.  For example, a majority of (i) 6 - 0; or (ii) 5 - 1 will suffice.  

Where the number of jurors has been reduced to 5, the jury must be unanimous in their verdict.

5. Non-attendance of juror

Any juror who fails to attend after they have been served with a summons to attend as a juror will be guilty of an offence and be liable to a fine of HK$5,000 unless the juror can show some reasonable cause for their failure to comply with the summons, for not appearing, or for withdrawing themselves without the permission of the court.

H. Role and duties of the prosecution

1. Role and functions

According to the Prosecution Code 2013 released by the Department of Justice, a prosecutor is required to comply with and promote the rule of law.  A prosecutor acts on behalf of the community in an impartial manner and as a "minister of justice".  Hence, in order to achieve this, a prosecutor must fairly and objectively, with accordance to the law, assist the court so as to do justice between the community and the accused.

Further, a prosecutor needs to present to the court credible evidence, relevant to what has been alleged to be a crime.  The role of a prosecutor excludes any notion of winning or losing and their function is a matter of public duty.

Since a prosecutor works in an adversarial and accusatorial litigation system, the prosecutor's advocacy role must be conducted temperately and with restraint, carrying out their roles as an integral part of a criminal justice process that includes investigation, prosecution, defence, adjudication and punishment.  

When in litigation, it is the duty of a prosecutor to, at all times, assist the court by putting forth relevant and credible evidence, making correct submissions of law, maintaining the highest standards of professional conduct and not behave in a manner which is acrimonious or offensive, or otherwise inconsistent with their position as a prosecutor. Prosecutors should invite the court to stop proceedings if it is apparent that there is no longer a reasonable prospect of conviction.

For the avoidance of doubt, a prosecutor should not argue or put forth facts or law where such submissions do not carry any weight or contribute to a decision of a court. Material that is put to a witness or accused must be accurate, reliable and justifiable under the circumstances.

To that end, any appealable error that is apparent in the course of the trial and sentencing proceedings must be made note of to the court immediately and be rectified as directed by the court.

2. Fairness

The bedrock of a prosecutor's duty is fairness.  As a prosecutor is required to prosecute in an effective and efficient manner, they should prepare and assemble all relevant evidence available to the prosecution well in advance of trial.  The prosecution should offer all of its evidence when presenting its case, informing the court of the defence authorities, warnings and directions that may be appropriate, even if it is unfavourable to the prosecution's case.

Any relevant material available to the prosecution that may not be admitted as evidence (including any material that appears to have been obtained illegally or by way of an improper manner) must be identified.  Yet, the prosecution has the option to decline adducing such materials though as part of their disclosure obligations, they must inform the defence of all such unused materials. If the prosecution decides to lead any such materials as evidence, the defence must be informed and if the defence objects to it, the court will ultimately, be the body to determine the admissibility of such evidence.

3. Human rights

The human rights of suspects, accused, victims, witnesses and other members of the public may be affected by virtue of a prosecutor's conduct in carrying out their role.  As such, a prosecutor must at all times during the course of criminal proceedings be aware of those rights, as well as their sources and to respect or give effect to them as appropriate.

The fundamental rights of Hong Kong residents and others are enshrined under the Basic Law and the Hong Kong Bill of Rights Ordinance (Cap. 383).  A prosecutor will need to be aware of such legislations and must at all times, be alert to the rights of an accused which are relevant to the prosecution process, including the principles that all people must be equally protected by the law, the rights in having confidential legal advice, innocent until proven guilty, and the right to a fair trial without undue delay.

To that end, in determining whether to prosecute a case or to continue a prosecution, the rights of an accused and other parties to the proceedings should be considered.

J. Costs in criminal cases

1. Defence Costs

(A) Magistrats' Courts

Under the Costs in Criminal Cases Ordinance (Cap. 492) (“CCCO”), there are certain situations in which a defendant will be awarded costs in the proceedings of Magistrates’ Courts, which include: (1) a complaint is not proceeded with, (2) the information or complaint is dismissed, or (3) the defendant is acquitted.

Additionally, Magistrates have the discretion to award costs under Magistrates Ordinance (Cap. 227) ss.20, 23 and 27. Generally speaking, a costs order should be made in an amount that is reasonable and sufficient to compensate a party for the costs and expenses incurred in the course of the proceedings. But since the maximum costs awarded under MO are very low and will likely not compensate the Defendant for the costs occasioned by the adjournment or amendment, Magistrates could choose to deal with defence costs under the Costs in Criminal Cases Ordinance. 

(B) The Court of First Instance and the District Court

In the criminal proceedings in the Court of First Instance or the District Court, the defendant may be awarded costs in situations which include: (1) he is acquitted of all charge(s); (2) acquitted on one charge or more (where there are more than one counts on the indictment); or (3) not tried after being indicted. 

(C) Refusing defence costs

The general principle is that successful defendants should have their costs.  However, the Court may refuse to award costs to a defendant if he has brought suspicion upon himself, or that he was acquitted on a technical ground. 

2. Prosecution costs

Where the defendant is convicted of an offence, the court may in addition to such sentence, order that costs be awarded to the prosecutor.

If the defendant was unsuccessful in their appeal, or that the appeal was without merit, or where the court reverses the verdict or order of acquittal, the court may order that costs be awarded to the prosecutor.

However, the Court would not often award the costs to prosecution in cases where the defendant is about to serve a sentence of imprisonment.  Immediate imprisonment would deprive the defendant of his ability to earn and ordering him to pay for the costs would be a financial hardship, so the Court would not assert additional burden thereon.

VI. Imprisonment and prisons

A. Rights of prisoners

The rights of prisoners are governed under the Prison Rules (Cap. 234A). 

The Correctional Services Department  provides all persons in custody  with daily necessities adequate for maintaining a decent and healthy living for their custody and rehabilitation. 

Persons in custody are allowed to receive certain articles from their visitors upon visit, the approved articles are stated under the lists of Approved Hand-in Articles. Due to security measures, all similar hand-in items must be mixed to the pool together for random distribution to the concerned persons in custody. 

There is no limit to the number of letters a person in custody can receive. A prisoner may write and send as many letters as he wishes to any person. However, he can only send one A4 letter of a maximum of four pages per week at the public expense. If he requests to send additional letters, he has to pay for the stationery and postage out of his earnings.

Each prisoner can only keep 20 cards in their possession at a time, any extra cards will only be given to them upon their release or be disposed of. 

A person in custody may receive a maximum of 6 magazines, periodicals and other general reading materials per month. There is no limit on the number of devotional books he can receive while textbooks are allowed in any approved quantity.

B. Social visit

Relatives and friends can visit remand persons in custody once daily. Each visit shall not exceed 15 minutes. No more than two visitors (infants and children included) shall be allowed at one time.

Relatives and friends can visit convicted persons in custody twice a month. Each visit shall not exceed 30 minutes. No more than three visitors, including infants and children, shall be allowed at one time.

On admission, all persons in custody shall declare the names and relationships of their visitors. During their custody, they may add or remove visitors on the list subject to approval by the institutional management.

C. Remission of sentence

Under section 69(1) of the Prison Rules (Cap. 234A), a prisoner serving a sentence of imprisonment for an actual term of more than 1 month may, on the ground of his industry and good conduct, be granted remission provided that this rule shall not permit the reduction of the actual term to less than 31 days.

Further, under section 69(2) of the Prison Rules (Cap. 234A), the remission granted under this rule shall not exceed one-third of the total of the actual term and any period spent in custody taken into account under section 67A of the Criminal Procedure Ordinance (Cap. 221), which allows a reduction of a sentence of imprisonment to take into account any period spent in custody prior to sentencing. 

For example, if the court rules that the starting point of the imprisonment sentence to be imposed on a defendant should be 9 months, normally the defendant will be entitled to a 1/3 discount if he pleads guilty at the earliest opportunity.  Then if the defendant behaves in prison, he will have another 1/3 discount. In other words, he only needs to serve 4 months in prison (9 months x 2/3 x 2/3).

D. Work

Under section 38 of the Prison Rules (Cap. 234A), all prisoners are required to engage in useful work for not more than 10 hours a day, of which so far as practicable at least 8 hours shall be spent in associated or other work outside the cells, rooms, dormitories or wards. Medical Officer may excuse a prisoner from work on medical grounds.

E. Long-term prison sentences review

For a mandatory life imprisonment sentence, the Court does not set a minimum term. However, under section 67B(2) of the Criminal Procedure Ordinance, the judge can note any “matters relating to the person or the offence which should be recorded for the purpose of reviewing the sentence in the future” and provide that report to the Chief Executive.

Once the prisoner has served five years of the sentence, the Long-term Prison Sentence Review Board carries out its first review of the sentence, and at that stage (and at later reviews), the Board will consider any comments made by the trial judge.

It is possible for persons who are sentenced to mandatory life imprisonment to be released in the future under procedures for the release of long-term prisoners administered by the Long-term Prison Sentence Review Board and the Chief Executive.

Since July 1997, the Long-term Prison Sentence Review Board can review a mandatory life sentence and recommend to the Chief Executive that the indeterminate sentence be replaced with a determinate (fixed sentence. Under Article 48(12) of the Basic Law (power to grant a pardon), should the Chief Executive accept that recommendation, he can commute the sentence.

Should the Chief Executive accept a recommendation to replace an indeterminate sentence with a determinate sentence, the Long-term Prison Sentence Review Board must conduct a review of the sentence as soon as practicable. For the review of the sentence, the Board takes into account a broad range of factors including any relevant reports or other documents. The Board can release the prisoner after he has served two-thirds of the sentence.

a. What are the effects on the level of sentence if the accused pleaded guilty?

A plea of guilty is a significant mitigating factor, as it may reflect the remorse of the accused and save the trouble and expenses of going through the process of a trial. The court may take into account the guilty plea when deciding whether or not a custodial sentence should be imposed on the accused. If it is considered appropriate by the Court to impose a custodial sentence, then a one-third discount to the overall length of imprisonment will normally be given to an accused person who pleads guilty at the earliest reasonable opportunity – the normally he or she will be given a full 1/3 discount of sentence. Lesser discounts may be given if the accused pleads guilty at a later stage, such as after the trial has begun. Nevertheless, all such discounts are given at the discretion of the judge.

B. Young Offenders

1. Will a child be guilty of an offence?

It depends on the age of the child. According to section 3 of the Juvenile Offenders Ordinance (Cap. 226), no child under the age of 10 years can be guilty of an offence.

C. Criminal Record

2. What are alternative charges?

An alternative charge is when an accused person is not guilty of an offence, but the allegation of the information, charge or indictment of the same may prove the guilt of the accused person of another offence, then the accused person may still be found guilty of that other offence. For example, if an accused person is charged with “inflicting grievous bodily harm”, the accused person may be found not guilty to this charge but be found guilty of another charge of “assault occasioning actual bodily harm” based on the same allegation in the indictment.

A possible outcome is that when someone pleads not guilty to a particular offence (e.g. Offence A) but pleads guilty of a different offence that they could be charged with based on the same incident (e.g. Offence B), upon the conviction of Offence B but without going through a full trial for Offence A which they pleaded not guilty to, the conviction for Offence B (which the person pleads guilty to) will be treated as an acquittal for Offence A (which the person pleads not guilty to). 

When there are alternative charges of different degrees of seriousness, the procedure for handling the pleas may differ. For example, if the accused person pleads guilty to the lesser offence, the judge will consider them not guilty of the more serious charge. On the other hand, if the accused pleads guilty to the more serious charge, there is no need to consider the lesser charge separately.

Furthermore, if there are alternative charges and the accused pleads not guilty to both charges but is found guilty of the more serious charge, the jury should not give a verdict on the alternative charge. This is to prevent complications during the appeal process, as it would be difficult for the Court of Appeal to substitute the proper verdict if the accused has already been acquitted (i.e. declared not guilty) of the alternative charge by the jury.

a. If the court date specified on my bail sheet falls during a time when I am not in Hong Kong, can I request a change of date? If so, what is the process for making such a request?

Generally speaking, when you are formally charged by the police, the police will immediately inform you of the date for your first court appearance (i.e. the first mention) and give you a new bail sheet. The bail granted to you by the police is also valid until that first court appearance date. In other words, you are expected to attend the first mention hearing in person on that day. 

For each subsequent hearing following the first mention, you should ensure that you are able to attend in person before the court fixes the hearing next date.

D. Prosecution

1. Private prosecution

It is a common law right for a person to bring a private prosecution. Chapter 7 of the Prosecution Code governs private prosecution. Under this regime, an individual has the right to initiate a criminal case in the public interest. Besides, section 14 of the Magistrates Ordinance (Cap. 227) enables a complainant or informant (i.e. someone other than the Secretary for Justice) to conduct the prosecution personally or with the help of a lawyer.

However, under section 8 of the Magistrates Ordinance, a Magistrate can refuse to issue a private summons for good cause. This means that the fact that an individual wishes to commence criminal proceedings does not mean that he will be allowed to, nor that if begun they will be permitted to continue.

Besides, the Secretary for Justice has the authority to intervene in a private prosecution at any stage and take over its management, essentially replacing the original prosecutor. If the Secretary for Justice decides not to continue the proceedings initiated privately, they may do so by refusing to sign the charge sheet or indictment (under sections 74 and 75 of the District Court Ordinance (Cap. 336) and section 17 of the Criminal Procedure Ordinance). In this regard, the Secretary for Justice can also discontinue a private prosecution where there is no reasonable prospect of conviction or where it is in the public interest to do so. 

The decision on whether to intervene is made based on factors outlined in the Prosecution Code. These factors include considerations of public justice, the seriousness of the offence, the opinions of involved parties, avoiding duplicate proceedings, consistency with decisions made by the Department of Justice, and the likelihood of a fair trial. The Secretary for Justice may also consider the conduct of the original prosecutor when making this decision. 

2. Prosecution not proceeding

According to Chapter 10 of the Prosecution Code, prosecutors have a duty to continuously review ongoing prosecutions. If a change in circumstances occurs and a reevaluation of the prosecution test shows that the evidence is no longer strong enough for a reasonable prospect of conviction or if the public interest no longer requires the prosecution, it should be discontinued. 

Reversing a decision not to prosecute or to discontinue a prosecution is only justified in certain circumstances, such as when a clear error or oversight was made, significant unforeseen evidence emerges, the case is temporarily halted for further evidence gathering (with prior warning to the accused), or if the discontinuation was the result of fraud, dishonesty, or impropriety.

a. Offering no evidence

Under section 51A of the Criminal Procedure Ordinance, when the prosecution “offers no evidence”, it means that the Court must pass a verdict of “not guilty” and the prosecution cannot recharge that defendant with the same charge. It is in effect the same as an acquittal upon a trial on that charge. 

The decision to pursue this course may be made by the prosecution if, for example, a key witness is no longer available to give evidence and thus there is no reasonable prospect for a proper conviction.

b. Leaving a charge on file 

This procedure has been developed in practice and has no statutory basis. It has been developed because, on some occasions, the prosecution would like to preserve its position regarding the relevant charges in the future. 

From a procedural standpoint, the prosecution can only leave a charge on file if the defendant has not taken plea regarding the offence charged and if no evidence has been called into the case. Hence, this procedure usually only takes place at the beginning of proceedings. 

Furthermore, this procedure requires the Judge’s consent. It may also occur where the prosecution is unwilling to offer no evidence on a charge (which would lead to a defendant’s acquittal) but the defendant is willing to plead guilty to some of the other charges. In other words, it may take place as part of plea bargaining. 

Where a charge is left on file, it is always a possibility that the prosecution will proceed with it again in the future, although the prosecution may be refused leave to proceed on the basis of unfairness to the defendant where a long period of time has elapsed.

I. Sentencing

1. Principles

The objective of sentencing is to determine the criminal responsibility of an accused for the offence(s) of which he has been found guilty, or to which he has admitted. The duty of the Court is to impose the appropriate sentence for the offence(s) of which the defendant has been convicted. 

The sentencing judge or magistrate should expressly state the starting point and the extent of any discount given and, where a defendant who has pleaded guilty is not given the usual discount, the reasons for withholding it. 

The Court has a variety of sentencing options, including both custodial and non-custodial sentences. Custodial sentences include (1) imprisonment, (2) detention / training / rehabilitation centre orders, etc. Non-custodial sentences include (3) community service orders, (4) probation orders, (5) fines, etc.  As a side note, death penalty has been absolutely abolished in Hong Kong since 1993.

Custodial Sentences 

When determining the length of imprisonment, the Court will consider a number of factors on a case-by-case basis. The usual factors considered by the Court include the seriousness of the offence committed, the impact on the victim(s) (if any), the maximum sentence as specified by statute, the existence of any aggravating or mitigating factors, etc.  In cases where the offender is convicted of more than one offence, the court may order the sentences to run concurrently or consecutively, subject to the totality principle (i.e. the total sentence should reflect the overall offending behaviour and be just and proportionate). For certain serious cases, such as trafficking in dangerous drugs, clear sentencing tariffs and sentencing guidelines are available for reference by the sentencing judge or magistrate to impose a sentence of imprisonment for a specified term depending on the quantum of the dangerous drugs trafficked. 

If a defendant pleads guilty to the charge against him, a discount of up to one-third of the sentence is usually allowed. For cases appropriate, the court may order a suspended sentence of imprisonment. This means that a sentence of imprisonment is effectively imposed, but the convicted person does not serve the sentence immediately.

Regarding the aforementioned detention / training / rehabilitation centre orders, they are special sentencing options for young offenders as follows:

1. Detention Centre Orders – for young male offenders aged between 14 and under 25, emphasising physical labour, strenuous exercise and discipline;
2. Training Centre Orders – for young male and female offenders aged over 14 and under 21, with emphasis on rehabilitation, and the offenders will receive training in a trade; and 
3. Rehabilitation Centre Orders – for young male and female offenders aged between 14 and under 21, targeting at young offenders with no criminal record and who have not committed an offence of a serious nature. 

Non-custodial Sentences

A fine may be imposed on a convicted person. The level of fine is determined by the seriousness of the case, the maximum fine set out in the statutory provisions, and the relevant case precedents. 

The court may impose a community service order or probation order where appropriate. Potentially relevant considerations include: clear or light criminal record; defendant’s personal, family, educational, employment background; whether the defendant has genuine remorse; whether the defendant is suitable/capable of performing community services etc.

2. Procedures

a. Pleas in mitigation

Upon conviction, the defendant will usually have matters relating to mitigation of sentence brought to the attention of the Court by his Counsel. During the mitigation process, Counsel will indicate to the court the special features of the defendant and/or his case that warrants a sentence reduction, e.g. guilty plea at an early stage of the legal proceedings, good personal background, proportionality of punishment, gravity of the offence, etc. 

Counsel may submit relevant case authorities in sentencing and/or other relevant materials to assist the Court in deciding the most suitable sentence for the defendant. 

b. Calling for reports

If the Court deems necessary, the mitigation hearing can be adjourned pending the relevant reports. In cases where the court is considering a community service order or probation order as a sentencing option, the probation officer will be asked to submit a suitability report on the respective order. Similarly, if a hospital order is one of the sentencing options, the Court would call for the relevant medical or psychiatric reports.   

A defendant might be remanded in custody or granted bail pending the reports. For example, it is possible for the defendant to be granted bail pending the preparation of the suitability report regarding a community service order or a probation order. But for reports like a suitability report for a Detention Order at the Drug Addiction Treatment Centre (DATC report), normally the defendant will be remanded in custody. 

c. What is the role of a probation officer?

A probation officer is an officer appointed to investigate, report and supervise the conduct of offenders sentenced to probation. The probation officer would meet the offender and accordingly produce a report to the Court explaining whether or not to recommend that the offender be placed on a probation order or community service order. During the execution of the probation order or community service order, the offender is required to comply with the instructions of the probation officer, failing which the offender would be deemed to have breached the order and may ordered to serve a prison sentence. 

If I make an admission to the police involuntarily, will the admission be admissible?

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.

What are 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.