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.