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

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 section 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.