LLAW3099 Criminal Procedure

LLAW3099 Criminal Procedure

Chapter 5: Preliminary Court Appearances and Procedure Prior to Trial

Learning objectives
1. Taking of instructions from the accused;
2. Disclosure by Prosecution;
3. Accused’s first appearance in the Magistrates’ Court;
4. Bail pending trial granted by Magistrate;
5. Procedure in court before decision of venue is made by SJ;
6. Transfer of proceedings to the District Court;
7. Committal proceedings to the CFI;
8. Indictment and charge sheet;
9. Court bail by District Court Judge or CFI Judge;
10. Duty lawyer scheme & Department of Legal Aid;
11. Plea bargaining;
12. Case Management & Pre-Trial Review (“PTR”);
13. Issues which Def must give proper notice before trial;
14. Means to secure DW’s attendance at trial

1. Taking of instructions from the accused

1.1 Formal instructions should be taken as soon as possible.
- Detailed instructions should be recorded in writing, with
each page signed and dated by the accused
- The process of obtaining instructions is on-going

Communications between a legal representative and the lay client are

generally protected by LPP.

The counsel has a duty to advise and explain the merits of the case. Bar Code para.10.56
- Should be made clear that there is complete freedom of
choice of pleading guilty or not guilty
- May advise client that he is unlikely to escape conviction
and a plea of guilty can mitigate sentencing
- If D told counsel that he did not commit the crime but
insisted on pleading guilty:
o Emphasise that it is D’s decision
o Advise on possible consequences
o Counsel must continue to represent D

2. Disclosure by Prosecution
2.1 Preliminary documents served to D

The investigating authority MUST serve to the accused:

- Charge sheet
- Brief facts

It is important to double-check whether the documents, e.g.:

- Comply with the prescribed forms
- Contain the particulars of the offences

2.2 Other documents served to D

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DOJ pledges to ensure full and proper disclosure of material to the

defence.
- Prosecution is under on-going duty to make full and proper
disclosure of material
- E.g. plea of no guilty or application by Prosecution that no
plea be taken: duty of disclosure to provide further discovery
of other documents

2.3 List of witnesses and list of exhibits

Note that Prosecution may have taken witness statements by Pol 154.

Prosecution has wide discretion to determine which witnesses to be R v Law Loi On

called upon, but:
- Where the Prosecution has notified the defence of its
intention to call a particular witness, it has duty to call that
witness, even though the evidence given may be inconsistent
with the Prosecution’s case
- Has discretion as to whether PW is for examination-in-chief
or cross-examination (to be exercised fairly and in the
interest of justice)

Where PW has previous criminal conviction (or even disciplinary HKSAR v Lee Ming
hearings), the Prosecution has duty to disclose such records. Tee (No.2), HKSAR
v Chan Kau Tai

2.4 Unused materials

They do not, did not and are not intended to form part of the
Prosecution’s case.

The Prosecution may be under a duty to disclose unused materials.

- Duty is not limited to admissible evidence; inadmissible HKSAR v Lee Ming
evidence may be useful for cross-examination Tee (No.2)

The Prosecution Code provides that:

- All relevant or possibly relevant material should be BL 87, Prosecution
disclosed, whether it assists the Prosecution Code para.12
o Positive and continuing duty on the Prosecution
o Materials which may not be disclosed: public
interest immunity or LPP
o Cf. No duty to disclose material only relevant to
credibility of D/DW
- Prosecution should inform Defence of materials not to be
adduced, and Defence may challenge admissibility
- Prosecution owes a duty of fairness to the community

The common law provides that:

- The basis of disclosure is the right to fair trial, open justice HKSAR v Lee Ming
- Two-stage process – Tee (No.2)
o Whether the relevant material exists? i.e. (1)
“relevant or possibly relevant”, (2) “raise or possibly
raise new issue”, (3) “real prospect of leading to
evidence in (1)/(2)”
o What is the extent of disclosure?

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- It is for the court and not the counsel to decide on any

dispute as to material disclosure
- Serious non-disclosure may render conviction unsafe Hall v HKSAR

The general duty on the Defence counsel includes the duty to inspect
unused materials.
- Failure to inspect may result in disciplinary proceedings or
appeal on grounds of “incompetence of counsel”

3. Accused’s first appearance in MC

3.1 Procedure

All criminal cases begin in the MC.

The accused must comply with the conditions of the bail; otherwise
the bail may be revoked, bail money may be forfeited and a warrant
may be issued.
- Reporting to the CSD officer in the court for attendance

In MC generally, representation by counsel deems the accused not MO s.18

absent.
- Subject to bail conditions
- No similar treatments in DC and CFI

Defence counsel should liaise with the Prosecution.

3.2 Selection of language to be used

3.3 Application by Prosecution to amend, withdraw, add charge or

offer no evidence

If the Prosecution decides to amend, withdraw, add charge or ONE,

the Defence counsel should take further instructions.
- For applications to amend, withdraw or add charge, the
Defence shall make submissions
- For application to ONE, the Defence should consider
seeking Defence costs

3.4 Application by Prosecution for plea to be taken

The substance of the complaint shall be read over to D and explained MO s.19(1)
if necessary; if D admits truth, magistrate shall convict/make an
order against him; otherwise, proceed to trial.

Possible pleas:
- Not guilty
o Prosecution informs of # of PW, # of alleged
confessions/admissions, estimated trial days
o Fix dates for trial/pre-trial review
- Guilty
o Brief Facts are read and whether D understands and
admits to the allegations

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o If yes, then plea is recorded => mitigation and

sentencing
o If disagrees with allegations in Brief Facts =>
Newton Inquiry
- To the jurisdiction of the court
- D has been pardoned
- Autrefois acquit
- Autrefois convict

3.5 Application by Prosecution for no plea

For more serious offences/when Prosecution is not ready to proceed,

Prosecution would ask no plea to be taken during first appearance.
- Ask for adjournment to future date

Power to adjourn must be exercised for a proper purpose. AG v Wong Chi-

- Further inquiries to be made ming
- Obtaining Government Chemist Certificate
- ID parade to be held
- Legal advice from DOJ
- Fitness to take plea

For fitness to take plea (or to be tried), such determination should be CPO s.75
made as soon as it arises.
- Two medical reports may be ordered to determine D’s
mental state
- Case must be adjourned for 8-10 weeks pending reports,
during which D will be in custody
- Courts may then determine whether D is fit to be tried
- Key issue: whether D can comprehend proceedings so as to R v Pritchard
make proper defence, challenge jurors and understand
evidence
o If unfit to be tried, then determine whether D did AR
of offences charged

4. Bail pending trial granted by magistrate

4.1 General

Bail is conditional grant of liberty.

- Main objective is to ensure that D appears at his trial and that HKSAR v Vu Thang
the public is protected from further offences in the Duong
meantime.
- Shall not be a general rule that persons awaiting trial shall be HKBORO art.5(3)
detained in custody

Purpose of bail is to ensure that D will not: CPO s.9D(2)

- Fail to surrender to custody
- Commit an offence while on bail
- Interfere with witness or pervert the course of justice

Right to bail pending trial (cf. pending appeal) is a fundamental

right.

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- It is for the Prosecution to show that bail should be denied or

subject to conditions.

Magistrate/DC judge may: CPO Part IA

- Admit D to bail (with/without conditions)
- Refuse bail
- Have no jurisdiction to hear bail application, e.g.
murder/treason (where bail application can only be heard by CPO s.9G(10)
CFI judge)

4.2 Procedure in the bail proceedings CPO s.9N

- Court may make appropriate inquiries

- D shall not be examined/cross-examined by the court
- Prosecutor may submit evidence to prove:
o Previous conviction
o Awaiting trial on another offence
o Previous failure to surrender to custody
o Circumstances of the case (e.g. probability of
conviction)

4.3 Grounds for refusing bail CPO s.9G

- If there is substantial grounds for believing D will not fulfil

the objectives in CPO s.9D(2)
o May have regard, e.g.: nature of offence, conduct of
D, background of D, health and other conditions of
D, history of previous bail, character of D
(antecedents?), nature and weight of evidence, etc.
- If already in custody under a sentence or previously failed to
comply with conditions of bail
- Subject to hospital order
- …

4.4 Possible bail conditions CPO s.9D

- Deposit of a reasonable sum of money

- Surety
o Must be willing to stand as one
o Has the financial resources
o Understands the obligations
o Note the prohibition and offence on indemnifying CPO s.9F
surety
o May ask for permission relieve duty of surety CPO s.9E

4.5 Where a bail condition has been or is likely to be broken CPO s.9K

- Issue warrant for arrest

o Police officer has reasonable grounds for believing
that condition has been/is likely to be broken
o Notified by surety that he believes that D is likely to
fail to surrender
- Amend bail conditions
- Revoke the bail

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- Charge with further offence CPO s.9L

o Without reasonable cause fails to surrender in
custody
o With reasonable cause but fails to surrender as soon
as reasonably practicable
- Forfeit the bail money CPO s.9M
o Without reasonable cause
o Court’s discretion as to whether the bail money is
forfeited

4.6 Review of bail decision / bail conditions

Court MUST reconsider bail at subsequent proceedings, but review CPO s.9G(11)
of decision to refuse bail / of bail conditions requires material
change of circumstances.
- New arguments

If original court refuses bail, D may apply for review by CFI judge. CPO s.9J
- Formal application to be made
- No right of appeal of CFI judge’s decision on bail
- Cf. material change of circumstances warranting new
application to be filed under CPO s.9D

On the other hand, SJ may apply to CFI judge to review the grant of CPO ss.9H,9I
bail by MC/DC.
- No right of appeal

5. Procedure in court before decision of venue is made by SJ

5.1 Generally

Actual decision as to venue rests with the SJ.

5.2 To be dealt with in MC

5.3 To be dealt with in DC

At the next mention hearing, Prosecution would make an application

for transfer. This may be made in writing.

5.4 To be dealt with in CFI

At the next mention hearing, Prosecution would apply for the case to
be adjourned to a return day for committal proceedings.

After that, magistrate’s power to remand D in custody is restricted: CPO s.79(1)

- D must appear before magistrate every 8 days unless
Prosecution consented to remand exceeding 8 days
- D usually would waive the right

5.5 Discharge

After transfer to DC / committal to CFI, D has right to apply for CPO s.16
discharge on the ground of “no prima facie case”.

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6. Transfer of proceedings to DC
6.1 Procedure

Before application by Prosecution to transfer proceedings, statements PD 9.4

and documents shall be served to D.
- Failure would not bar transfer but may lead to cost
consequences

Indictable offence may be transferred to DC. MO s.88

- Magistrate is obliged to transfer upon application
- Unless offences are contained in MO Sch.2 Part III or triable Chiang Lily v SJ
summarily only

Charge sheet contains one summary offence and more than one MO s.88(1)(b)
indictable offence not include in MO Sch.2 Part III:
- Offences triable summarily only can also be transferred

6.2 Procedure after transfer to DC

- Appoint a day to be brought before DC MO s.90

- Put D in custody or on bail
- Inform D the effect of the order
- Alibi notice should be given to DC/Prosecution 10 days prior
to trial

After transfer, DC shall have jurisdiction of proceedings (similar MO s.75(1)

jurisdiction/powers as CFI).

Further charge sheet shall be prepared by DOJ. MO ss.75, 77

- Signed by a legal officer
- Delivered to and filed with Registrar of DC
o Charge/complaint: 14 days; indictment: 21 days
o If transferred under CPO s.65F, failure to deliver
would discharge/acquit D
- Served to D

6.3 Transfer proceedings out of DC DCO ss.77A, 77B

7. Committal proceedings to CFI

7.1 Introduction

MO ss.79-87D sets out the procedures of committal proceedings.

- Failure to comply with procedures by R v Kent JJ, ex p
Prosecution/Magistrate may render committal a nullity Machin
- More than one D can be committee together

7.2 Appointment of return day by magistrate

At the next mention hearing before magistrate, Prosecution would MO s.80A

apply for adjournment to return day for committal proceedings in
MC.

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- Return day shall be between 10 and 42 days from mention

hearing
- Shall inform D:
o Right to apply for legal aid (as committal
proceedings not included in Duty Lawyer Scheme)
o Receive copy of complaint with witness statements,
documentary evidence not less than 7 days before
return day
o Right to require preliminary inquiry on return day
o Plea of guilt would be at the conclusion of
preliminary inquiry (if any)
o Committal for trial unless preliminary inquiry
ordered

Note that D must be present in preliminary inquiry.

7.3 Service of committal bundle prior to return day

Service of bundle (not less than 7 clear days before return day). It MO s.80B
should include:
- Complaint
- Witness statements
- Documentary exhibits
- List of exhibits

If it is not served in time, magistrate is required to adjourn matter

until the date when the requirements are fulfilled.

7.4 Procedure on return day

Prosecutor shall hand into court the originals of documents. Then MO s.80C
magistrate will inform D:
- Prosecutor seeks committal
- Committal to CFI unless there is preliminary inquiry
o Paper committal vs. Preliminary inquiry

Preliminary inquiry MO s.80C(2)

- Its purpose is to see whether there is sufficient evidence
- This is rarely used because:
o Proof is satisfied (prima facie case)
o It will reveal the Defence’s case
o Discharge does not bar subsequent complaint MO s.85(1)

Paper committal MO s.80C(3)

- Inform that D may plead guilty and case will be committed
for sentencing
- If no plea, D will be committed for trial
- After committal, there is one chance to apply for discharge
on grounds of no prima facie case

Committal for sentencing MO s.81B

- Prosecutor to outline alleged facts
- Explain to D the offence
- Record statements made by D in pleading guilty

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- Magistrate has to be satisfied that plea is voluntary and that

D understand nature of charge
- D shall be brought before CFI as soon as practicable for
sentencing
- Withdrawal of plea is only possible with leave of CFI judge

Procedure following committal (for trial): MO s.85A

- Grant bail
- Issue warrant committing accused to prison until delivery
o Inform D of right to apply for bail
- Inform of right to apply for legal aid
- Alibi notice
- Right to apply for discharge on the grounds of no prima
facie case

7.5 Transfer of proceedings involving complex commercial crimes CCCO s.3

- Indictable offence
- SJ is of the opinion that:
o Evidence would be sufficient for committal
o Case of fraud/dishonesty in commercial context and
of such seriousness and complexity
o D has not been asked whether the case should be
heard at preliminary inquiry
- Order of transfer circumventing preliminary inquiry
o Magistrate must make such order

Service and delivery of summary of evidence to Registrar within 7 CCCO s.6

days of the order of transfer.

Indictment shall be signed and served on D and delivered to CCCO s.8

Registrar.
- Within 7 days after date of transfer order

7.6 Transfer of proceedings to CFI under CPO s.79F CPO s.79F

Transfer of case directly to CFI without committal proceedings in

the interest of protecting welfare of vulnerable victims, e.g. children
and mentally incapacitated people.

Conditions for children:

- Charge with sexual abuse, cruelty or assault or injury or
threat of injury
- Child was victim
- DPP is of opinion that there is sufficient evidence and for
avoiding prejudice to welfare of child

[NB This is an exception to general rule that CFI has no jurisdiction

to hear summary charge]

Conditions for the mentally incapacitated:

- Same as the case for children except that a wider array of
offence (“any offence triable on indictment, or either
summarily or on indictment”)

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Other conditions:
- Notice of transfer served before D elects preliminary inquiry
- Serving documents on D on or before notice of transfer

On service of notice of transfer, magistrate shall order D stand

committed for trial in CFI.

7.7 Voluntary bill to CFI

Ex parte application can be used by SJ to CFI to circumvent

committal proceedings in exceptional circumstances.

7.8 Defects in committal proceedings

Only substantial departure from procedural requirements would R v Cheung Hing-

render committal invalid and subsequent conviction a nullity. biu

7.9 Procedure after case is committed to CFI

An indictment should be preferred against D when case is CPO s.24A

committed.
- Paper committal: file and serve indictment within 7 days of
committal
- Committal after preliminary inquiry: indictment on receipt
of documents relating to the case
- CCCO s.4 transfer: within 7 days of order of transfer

Indictment shall be filed at Registrar of HC. Registrar would then CPO ss.26-28
endorse on / annex to every indictment and copy. Registrar shall
deliver to bailiff a copy of indictment.

7.10 Transfer of proceedings out of CFI

SJ can apply to transfer the case of out of CFI to DC/MC. CPO ss.65F, 65G

Alternatively, SJ may refer the case back to MC. CPO ss.10, 11

8. Indictment and charge sheet

8.1 Generally

An indictment serves several functions:

- Inform the court of the offence
- Provide substance of charge to D
- Ensure that only relevant evidence is admitted
- Determine the availability of autrefois convict/acquit
- Invest the court with jurisdiction to hear the case

8.2 Indictment – form and consent

Indictment contains:
- Commencement – jurisdiction of courts and parties
o Should plead jurisdiction of HK courts
- Statement of offence

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- Particulars of offence Indictment Rules,

o Reference to the specific provision rules 3, 4
o Essential elements of offence
 Should be sufficiently clear Chan Tak Ming v
 Judge may ask for further particulars HKSAR
(with/without application by D) R v Chow Hei
 D may not on appeal complain insufficiency
o Should be reasonably sufficient to identify D Indictment Rules,
o Allegation of offence includes attempt of offence rule 6
o Cf. Not necessary to include matters need not proven CPO ss.22, 94A
(i.e. no need to negative exceptions) – for
Prosecution to prove primary facts and D to establish
exception
- Signatory of SJ CPO s.17

Indictment may include: CPO s.24A

- Counts charging offence for which D committed
- Counts founded on facts/evidence disclosed in depositions,
documents served, written statements admitted in evidence

When there is more than one offence, each offence is set out in a
separate paragraph (a “count”).

8.3 Joinder of charges and/or rule against duplicity

Offences may be joined if charges are founded on same facts or part Indictment Rules,
of a series of offences of the same/similar character. rule 7
- More than one offence may be joined CPO s.18
- Whether they are of “common factual origin” R v Wong Kwai-fun

Second trial on same or substantially same facts may apply for stay Yeung Chun Pong v
on the grounds of abuse of process. SJ

Defendants of a crime should be tried together in joint trial. CPO s.24B

A single count should contain no more than one offence. Indictment Rules,
- Contravention is said to be bad for duplicity rules 2(2), (3)
- Indictment involving duplicitous count is not necessarily a HKSAR v Li Suk
nullity; can be cured by amendment and powers of trial Woon
management
- Have to consider whether complaint is well-founded and
whether there is a risk of injustice

8.4 Alternative charges

For offence other than treason, alternative verdict could be returned. CPO s.51, Indictment
It is not necessary to explicitly state alternative count. Rules, rule 5
- Within jurisdiction of the court of trial

8.5 Severance of trial

Court has discretion to sever a trial. CPO ss.23(3)

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- If the court is of opinion that D may be

prejudiced/embarrassed by reason of being charged with
more than one offence
- Or other reason desirable

8.6 Defective indictment or charge

Possible reasons, inter alia:

- Bad for duplicity
- Misjoinder
- Fundamental mis-description or omission of element
- Wrong statute in Statement of Offence
- No mentioning of statute

Defects may be cured by amendment/verdict, or they may be so bad

that it is a nullity.

8.7 Amendment to indictment or charge

Court shall make order for amendment unless amendments cannot be CPO s.23(1), HKSAR
made without injustice. v Ng Soi-chau
- Jury trial: amendments may be allowed until summing up R v Newington
- Single-judge trial: upon delivery of verdict
- The later the application to amend, the more unjust

See also MO s.27 where the “adjudicating magistrate” can See also HKSAR v
- (i) amend the complaint if no injustice would be caused or Tse So So
o Immaterial defect
o Injustice could be cured by cost orders, adjournment
or leave to recall/examine witnesses
- (ii) dismiss the complaint

9. Court bail by DC judge or CFI judge

9.1 Court bail granted by DC judge

DC judge can admit D to bail after the case was transferred from CPO ss.9C-9Q, MO
MC. ss.79,102-103

9.2 Court bail granted by CFI judge

CFI judge has jurisdiction to:

- Grant bail to D on application by him who is charged with CPO s.9G(10)
treason/murder
- Grant bail to D on application by him after committal CPO s.9D(1)(b)
- Grant bail to D on application by him who was refused bail CPO s.9J
or would like to review bail conditions
- Grant bail to D on application by him before transfer back to CPO s.65F
MC/DC
- Grant bail pending appeal
- Review bail on application by SJ CPO s.9H

10. Duty lawyer scheme and legal aid

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11. Plea bargaining

11.1 Generally

It should be borne in mind that the decision to prosecute is based on

two factors: sufficiency of evidence and public interest.
- DOJ may decide not to proceed if either element is absent

Advantage of plea bargaining is to settle the case without trial.

Possible scope of plea bargaining:

- D is under investigation: ceasing investigation, not arresting
D, or not charging D?
- D was charged: withdrawing case, or ONE?
- D was charged and admitted to certain allegations: ONE
bind over, pleading to lesser charge, or becoming PW?

Note that any representation/admission made by D during plea

bargaining may affect D’s trial if plea bargaining is unsuccessful.

11.2 Offer no evidence (ONE) vs. ONE and bind over

Withdrawing the case against D by offering no evidence.

Offering no evidence on the condition that D agrees to be bound

over to keep the peace by magistrate:
- D does not plead guilty so no formal criminal record
- But:
o D must accept and agree to a set of facts (Brief
Facts/Summary of Facts)
o D must also accept the terms of bind over order of
magistrate
- Purpose is to prevent future breaches of the peace CPO s.109I, MO
- Magistrate has jurisdiction to order the deposit of a specific s.61
amount of money/sureties
- ONE bind over order is only effective when D consents to it HKSAR v Lau Wai
- ONE bind over to keep the peace should be only be ordered Wo
when conduct involves:
o Violence
o Threat to violence
o Conduct giving rise to reasonable apprehension that
violence will take place
- Terms of the bind over terms should be clear

D would usually undertake not to seek costs from Prosecution.

12. Case management and pre-trial review

12.1 Generally

To ensure that issues which need to be dealt with are resolved PD 9.3, 9.4
expeditiously.

12.2 Vulnerable witness

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To protect children and victims of sexual crimes:

- Possible use of screens
- Possible use of live television link

13. Issues which D must give proper notice before trial

13.1 Generally

D benefits from the right to remain silent in court. HKBORO art.11

However, D has a duty to give notice on the following matters:

- Stay of proceedings
- Alibi evidence
- Expert evidence

13.2 Stay of proceedings

Requirements at all court levels (MC/DC/CFI): PD 9.7

- Notice in writing
- At the time of plea/PTR but no later than 21 days prior to
trial for notice to Prosecution
- Skeleton and list of authorities to all parties no less than 14
days before trial

Non-compliance would not prohibit the application but may lead to

cost orders.

13.3 Alibi evidence of D

Reliance on alibi evidence by D in trial on indictment has to comply CPO s.65D

with the following:
- Should not be given leave to adduce evidence of alibi unless
D gives notice of particulars (e.g. of DW)
- Not less than 10 days before trial to court and DOJ

Late service may result in court exercising discretion not to allow HKSAR v Chan Hoi
alibi evidence to be adduced / to affect weight of alibi evidence. Tat

Note the alibi warning at committal or transfer proceedings.

13.4 Expert evidence

Following committal or transfer of proceedings, D shall as soon as CPO s.65DA

practicable:
- Notify other parties (e.g. DOJ) by writing
- Provide other parties with the result if received a request in
writing

No expert evidence should be adduced without leave of court if the

above requirements are failed to be complied with
- Potential cost consequences or refusal to grant leave by
court to adduce expert evidence

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- Cf. No need to furnish results if it might lead to intimidation

but would need to notify the other parties in writing

Note that although CPO s.65DA strictly speaking only applies to DC

and CFI, exchange of expert reports is also done at MC level.
- This is because the court will likely adjourn the case if the
reports are only exchanged during trial => possible cost
orders

Note that expert witness has an overriding duty to assist the court Rules of High Court
impartially and independently; it is not an advocate for a party. App D

14. Means to secure DW’s attendance at trial – witness summons/warrant

14.1 To secure attendance by witness in DC or CFI, Prosecution/Defence CPO s.34
may apply for witness summons.
- Summons may be of no effective if witness applies to court
that he cannot give material evidence
- Person who without just excuse disobeys the
summons/refuses to be sworn/to give evidence => contempt

At MC:
- Witness summons issued to give evidence for Prosecution
- Witness summons for other parties MO s.78
o Likely to give material evidence MO s.21

Note that it might be risky to call DW because defence witnesses can

only be examined in chief but not cross-examined.

Also, a barrister should not coach any witness, and should not Bar Code
communicate with witness at all once witness has begun to give paras.10.25-26
evidence until his evidence has been concluded.

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