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TRAN A803BF

Hong Kong Legal System and

Legal English

Lecture 8 –

How Law is Proceed

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8.1 Criminal Trial

8.1.1 Introduction

The usual procedures to trial are as follows:

• Arrest

The police arrests a suspect.

• Laying of charges

After investigation, the police may lay charge on the suspected.

• The police shall bring the suspect to the court for trial. Then the suspected becomes an accused. The accused can choose to act in person or to engage a lawyer.

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8.1 Criminal Trial

• Criminal trials may take place in

--Magistrates Court,

--District Court or

--Court of First Instance .

The location of the trial is determined by the category of offence.

However, all suspected, regardless of the category of offence, will initially come to the Magistrate Court.

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8.1 Criminal Trial

• 3 categories of offence:

(a) Indictable only

--The most serious crimes, e.g. murder,

manslaughter, armed robbery, rape and

drug trafficking involving large quantities

of drugs, must be tried in the Court of First

Instance before a judge and a jury. All

these offences carry a maximum penalty of

life imprisonment.

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8.1 Criminal Trial

--The trial of these cases may be preceded by a committal hearing in the Magistrates Court where the basic facts are tested. It is to determine whether the matter should proceed to the Court of First Instance for trial.

--The committal seeks to establish whether the prosecution has sufficient evidence on which to base its charge(s )and that if the matter goes to trial that there is the likelihood that the offender will be convicted.

--After the committal, the prosecution will draw up the indictment (details of the crime charged.

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8.1 Criminal Trial

(b) Indictable or summary

Some offences, e.g. theft, burglary, assaults and drug offences involving lesser quantities of drugs, may be tried upon an indictment or a summons (summarily).

The decision as to whether the case will be heard by way of an indictment in the Court of First Instance or District Court is based on the seriousness of the offence and the likelihood of a substantial gaol sentence.

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8.1 Criminal Trial

The maximum period of imprisonment that can be imposed by a District Court judge is 7 years. If it is believed that the accused will and should receive a longer period of imprisonment, then the trial will take place in the Court of First Instance before a jury.

This is the same where the decision is made to have a trial on indictment, in the District Court or summarily in the Magistrates Court, where the usual maximum term of imprisonment is 2 years. In both cases, the decision is made at the discretion of the Secretary for Justice.

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8.1 Criminal Trial

(c) Summary only

The less serious offences, e.g. careless

driving, common assault and illegal

gambling, can only proceed by way of

a summons and are tried in the

Magistrates Court.

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8.1 Criminal Trial

• Bail

If the accused has been arrested and charged, he or she may be in police custody or on police bail.

The law relating to bail is set out in Part 1A of the Criminal Procedure Ordinance.

Under s9D, the accused has a right to bail unless there is good reason for refusing it, such as the likelihood that the accused will abscond.

The justifications for refusing bail are set out in s9G.

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8.1 Criminal Trial

8.1.2 Criminal Procedure

8.1.2.1 Criminal Procedure in the Magistrates Court

Summary Trial

• Plea-taking

--If the matter is commenced by the way of summons in the Magistrates Court, the accused is asked whether he/she pleads guilty or not guilty.

--Pleaded guilty

If the plea is guilty, the prosecution would read the summary of facts and the details of previous criminal records, if any.

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8.1 Criminal Trial

• Report

Before sentencing, the Court would

request for a report, e.g. probation report,

if necessary.

• Mitigation

The Court would allow the offender to

mitigate.

• Sentence

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8.1 Criminal Trial

--If the plea is not guilty, a date for trial must be fixed.

• Trial

--Prosecution’s opening

The prosecution commences by stating a case since the prosecution bears the responsibility of establishing the guilt of the accused (the onus of proof) beyond reasonable doubt.

--Examination-in-chief of prosecution’s witness

The prosecution calls prosecution witnesses, e.g. police officers, to give evidence in order to prove the guilt of the accused.

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8.1 Criminal Trial

--Exhibits

The prosecution may also wish to introduce items, e.g. a gun or knife or documents, as exhibits.

--Cross-examination of prosecution’s witness

After the prosecution finishes examining a witness, the defence has the right to cross-examine.

The aim of the defence is to discredit the evidence or to raise a doubt as to the truth of what the prosecution witness has said.

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8.1 Criminal Trial

--Re-examination of prosecution’s witness

At the end of cross-examination, the prosecution may ask the witness some more questions in order to make clarification on some obscure points.

--Submission by defence of No Case to Answer

After the prosecution’s case is complete, the defence can apply for the case to be stopped by claiming that the prosecution has not shown that the accused has a “case to answer”.

The substance of this claim is that the prosecution has not been able to show that the accused is criminally liable, as set out in the particulars of the summons.

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8.1 Criminal Trial

--If the Magistrate accepts the submission of no case to answer, the accused would be acquitted.

--If the Magistrate rejects the submission, there is a case to answer. The trial will proceed.

--Opening case of Defence

The defence states his case.

The defence calls witnesses to give evidence. As with the prosecution case, there will be examination-in-chief, cross-examination and re-examination of the such witnesses.

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8.1 Criminal Trial

--Closing of submissions

On completion of the examination of defence’s witness, the prosecution will give his/her closing speech. Then the defence followed to give closing speech.

• Verdict

The Magistrate alone considers the question of guilt. If it is not guilty, the accused would be acquitted. If it is found guilty, the accused would be convicted.

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8.1 Criminal Trial

• Previous Criminal Records

The prosecution would read the previous criminal records, if any, of the offender.

• Reports

Before sentencing, the Magistrate would request for a report, e.g. probation report, if necessary before sentencing.

• Mitigation

The Magistrate would allow the offender to mitigate before sentencing.

• Sentence

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8.1 Criminal Trial

8.1.2.2 Criminal Procedure in the District Court

• The District Court tries the indictable offences (imprisonment for more than 2 years but less than 7 years) transferred from the Magistrates’ Court after the committal hearing.

• A District Court Judge sits alone without a jury.

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8.1 Criminal Trial

• Plea-taking

--Pleaded guilty

If the plea is guilty, the prosecution would

read the summary of facts and the details

of previous criminal records, if any.

• Report

• Mitigation

• Sentence

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8.1 Criminal Trial

• Plea-taking

--If pleaded not guilty, a date would be fixed for trial.

• Trial

--Prosecution’s opening

--Examination-in-chief of prosecution’s witness

--Cross-examination of prosecution’s witness

--Re-examination of prosecution’s witness

--Submission by Defence of No Case to Answer

--If no case to answer—accused acquitted

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8.1 Criminal Trial

--If case to answer--

>Defence’s opening

>Examination-in-chief of Defence’s witness

>Cross-examination of Defence’s witness

>Re-examination of Defence’s witness

--Closing submissions

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8.1 Criminal Trial

--Verdict

>If it is not guilty, the accused would be acquitted.

>If it is found guilty, the accused would be convicted.

--Previous criminal record, if any, and reports

--Mitigation

--Sentence

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8.1 Criminal Trial

8.1.2.3 Criminal Procedure in the Court of First

Instance (Original Jurisdiction)

• The Court of First Instance tries the indictable

cases (imprisonment for more than 7 years)

transferred from the Magistrates’ Courts after the

committal proceedings.

• Cases are tried, normally in open court, by a

Judge, sitting with a jury of seven, or when a

Judge so orders, a jury of nine.

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8.1 Criminal Trial

• The Clerk of Court’s Office will list the

case for date fixing before the Listing

Judge and will inform the parties in writing

of the date of appearing.

• At the date for fixing a hearing, the Listing

Judge will give the dates of both the pre-

trial review and the trial.

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8.1 Criminal Trial

• Pre-trial Review

--A pre-trial meeting is held usually 6 weeks before trial in chambers between the prosecution, defence counsel and the Judge.

--At the meeting, the following matters may be settled:

>plea to be tendered by the accused,

>additional evidence from the prosecution,

>admission of facts by the accused,

>witnesses to be called by the prosecution,

>objections as to the admissibility of evidence,

>any alibi to be put forward,

>submissions as to the quashing of the indictment,

>severance of the accused, and

>any need for a voir dire,

--As a result of the meeting, the Judge will give such directions as necessary to secure the proper and convenient trial of the case.

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8.1 Criminal Trial

• Trial

• Plea-taking

--Pleaded guilty

If the plea is guilty, the prosecution would read the summary of facts and the details of previous criminal records, if any.

• Report

• Mitigation

• Sentence

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8.1 Criminal Trial

--If pleaded not guilty,

>Voir Dire

Determine admissibility of evidence in Chamber, if any.

>Empanel Jury

>Prosecution’s opening

>Examination-in-chief of prosecution’s witness

>Cross-examination of prosecution’s witness

>Re-examination of prosecution’s witness

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8.1 Criminal Trial

--Submission by Defence of No Case to Answer

--If no case to answer—accused acquitted

--If there is case to answer—start defence

>Defence’s opening

>Examination-in-chief of defence’s witness

>Cross-examination of defence’s witness

>Re-examination of defence’s witness

--Closing submission by prosecution and

defence

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8.1 Criminal Trial

• Summing-up by Judge

The judge will sum up the evidence for the jury, summarising the facts and highlighting those that are most important.

Directions will be given as to the points of law involved in the case, e.g. the prosecution’s burden of proof or what the jury may need to consider if a defence has been raised, e.g. provocation.

The jury will then retire to a private room to consider its verdict.

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8.1 Criminal Trial

• Jury to give verdict

In all crimes, including murder, a majority verdict of five to two will be sufficient for a conviction.

If the verdict is not guilty, the accused would be acquitted.

If the verdict is guilty, the accused is convicted.

• Previous criminal record, if any, and reports

• Mitigation

• Sentence

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8.1 Criminal Trial

8.1.3 Criminal Appeals

8.1.3.1 Appeal to the Court of First Instance (Appellate Jurisdiction)

• The Court of First Instance functions as an appeal court for criminal cases heard in the Magistrates’ Courts.

An accused who is not satisfied with the decision of the Magistrate may lodge an appeal to the Court of First Instance within 14 days after the decision of the Magistrate.

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8.1 Criminal Trial

• The accused should file with the Magistrates’ Courts where the trial was conducted. No filing fee is required.

• Upon receipt of the appeal bundle from the Magistrates’ Courts, the Clerk of Court fixes a date for the hearing of the appeal. A notice of hearing and a copy of the appeal bundle will be sent to the parties concerned.

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8.1 Criminal Trial

8.1.3.2 Appeal to the Court of Appeal

• When an accused in a criminal case tried by the District Court or the Court of First Instance is convicted and does not satisfied with the decision, he/she may lodge an application for leave to appeal with the Court of Appeal within 28 days from the day of conviction or sentence.

• If the accused does not lodge an application within time, he/she may apply to the Court of Appeal for leave to appeal out of time.

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8.1 Criminal Trial

• An accused may appeal against his/her conviction, sentence, or both conviction and sentence by filing a Notice of Appeal setting out the grounds of appeal within the time limit.

• The Secretary for Justice may also appeal against a lenient sentence or use the “case stated” option where it is believed that the accused has been wrongly acquitted.

• an appeal against a conviction must be based on a point of law. The Court of Appeal will generally not hear appeals based simply on questions of fact.

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8.1 Criminal Trial

• The Court Clerk will send an initial appeal bundle to all parties concerned when it is ready. Further papers will be prepared and sent to the parties concerned on request and upon approval by the Directions Judge or Registrar of Appeals.

• An Appeal Judge may after hearing refuse leave to appeal or conduct “For Mention” hearings to ensure the case is ready. When it is ready, a date will be fixed for hearing the appeal.

• After the hearing, the Court of Appeal, comprising two or three Justices of Appeal, may dismiss or allow an appeal orally and/or reserve written judgment to be handed down or delivered on a date to be fixed.

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8.1 Criminal Trial

8.1.3.3 Appeal to the Court of Final Appeal

• An accused dissatisfied with a Court of Appeal decision may seek leave to appeal to the Court of Final Appeal.

• This is usually only against conviction and not sentence, although the court has complete discretion to hear any appeal from the Court of Appeal or from the Court of First Instance in the case of a magistrate’s appeal.

• An application for leave to appeal must be based on an important point of law of sufficient legal significance for HKSAR. This is usually done by way of a certification by the Court of Appeal or Court of First Instance (s32(2) of the Court of Final Appeal Ordinance).

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8.1 Criminal Trial

• Flowchart for Criminal Procedure

--Magistrates Court

--District Court

--Court of First Instance, High Court

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8.2 Civil Trial

8.2.1 Introduction

• The procedure of civil trial in different

courts/tribunals is different.

• We would take the civil trial in the

Court of First Instance and District

Court as examples to demonstrate.

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8.2 Civil Trial

8.2.2 Civil Procedure

8.2.2.1 Civil procedure in the Court of

First Instance (Original Jurisdiction)

• The plaintiff starts a civil action against the

defendant in one of three ways:

--engage a lawyer

--seek the help of the Legal Aid Department

--start the action himself/herself

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8.2 Civil Trial

• Cartain types of individual, e.g. infants, mentally

disabled persons, estate of a deceased person,

can only commence a civil action by a

representative.

• A limited company must engage a solicitor to act

on its behalf in the Court of First Instance

whether as plaintiff or defendant unless special

permission is obtained from the Court.

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8.2 Civil Trial

• Mode of starting an action

--The plaintiff can commence a civil action in the Court of First Instance in one of the following modes:

>Writ of summons

>Originating summons

>Notice of originating motion or petition

--The most common mode for commencing an action is the Writ of Summons and is outlined below.

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8.2 Civil Trial

• Procedure of Civil Trial

• Writ of Summons

The plaintiff can obtain a Writ of Summons and the accompanying Acknowledgement of Service from the High Court Registry.

A Writ of Summons must always be used to commence an action based on contract, tort, fraud, damages for personal injuries or death, damages to property arising out of a breach of duty.

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8.2 Civil Trial

• Filing of Writ of Summons

The plaintiff will set out on the Writ of

Summons in Chinese or English a

statement of claim, i.e. a concise

statement of the claim together with the

facts the plaintiff relies on and the relief

and remedy the plaintiff claims.

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8.2 Civil Trial

Pay a filing fee upon filing the Writ. Having paid the fee, return the completed forms to the Registry.

The plaintiff must serve the Writ and Acknowledgement of Service on the defendant. This can be done by personal service, registered mail, or insertion through the letter box. Make sure the defendant’s address is accurate.

In an action for recovery of possession of land / property, the plaintiff must also post up a copy of the Writ at the entrance of the premises in question.

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8.2 Civil Trial

• Filing of Acknowledgement of Service by the Defendant

When the defendant is served with the Writ and the Acknowledgement of Service, he/she must fill in the Acknowledgement of Service to indicate if he/she wishes to defend the action and file it with the Registry within 14 days after service of the Writ (including the day of service).

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8.2 Civil Trial

• Filing and serving of defence by the

Defendant

The defendant must file the defence with

the court and serve on the Plaintiff within

14 days after the time limit for

Acknowledgement of Servise expires. The

defence must explain why the defendant is

disputing your claim.

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8.2 Civil Trial

• If a defendant does not file the

Acknowledgement of Service or Defence

within the time allowed, the plaintiff can

apply to the Court for judgment.

In such a case, a full trial is not required.

The plaintiff may enter judgment for the

amount claimed and costs.

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8.2 Civil Trial

• Filing and serving the Counterclaim by the

defendant

The defendant may file the Counterclaim

together with the Defence if he/she/it has

claim against the plaintiff. He/She/It may

serve the Defence and Counterclaim to

the plaintiff together.

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8.2 Civil Trial

• What happens if the defendant files a Defence/Counterclaim?

The plaintiff may file with the court and serve on the defendant a Reply to any Defence within 14 days after service of the Defence, and set out additional facts in answer to it.

If the defendant files a Counterclaim, the plaintiff will have to file and serve a Defence to it within 14 days after the service of the Counterclaim if the plaintiff wishes to dispute it.

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8.2 Civil Trial

The defendant can enter judgment in

default of Defence to the Counterclaim if

the plaintiff fails to do so within time. As far

as the Counterclaim is concerned, the

plaintiff have become the defendant.

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8.2 Civil Trial

• Discovery of Documents

The “pleadings”, or formal statements of claim and defence are now complete. Next comes “discovery”, where each party must disclose to the other party the documents he/she/it possesses that relate to the case.

After disclosing the documents, both party must allow the other party to inspect the actual documents.

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8.2 Civil Trial

• Interrogatories are written questions which

one party may require another party to

answer concerning matters at issue in an

action.

If a party has questions about the

statements made by the other party,

he/she/it may raise questions and ask the

other party to answer or clarify.

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8.2 Civil Trial

• Summons for Directions (Checklist to

Master)

The plaintiff must, within one month after

pleadings are closed, issue a summons for

directions seeking the orders necessary

for the conduct of the trial.

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8.2 Civil Trial

• Listing for Trial

When a case is ready for trial, the plaintiff should issue an inter-parte summons returnable before the Listing Master to ask for leave to set the case down for trial.

If the Listing Master is satisfied that parties are ready for trial, he/she will grant leave and give directions as to the manner for trial.

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8.2 Civil Trial

• The plaintiff should then file with the Court

an application to set a case down for trial

and a notification of setting down. When

filing the application to set down, a

prescribed fee has to be paid.

Besides, the bundle of documents of the

plaintiff and defendant have to be lodged.

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8.2 Civil Trial

• Trial Hearing

Both parties should attend Court punctually on the trial date, bringing relevant original documents and photocopies for the Judge and for the other party if necessary.

The witnesses should come with the parties.

At the trial, the Court will hear the evidence of witnesses and the submissions of the parties. The Court may deliver judgment at the end of the trial or deliver/hand down the judgment at a later date.

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8.2 Civil Trial

• If the parties are willing to settle, the Court will

make the settlement an order of the Court.

If the parties settle the case amicably before the

trial, the plaintiff may file a notice to discontinue

the case, or file a notice to discontinue the case,

or file a consent order setting out the agreement.

The plaintiff may also apply to the Court at the

trial to have the terms of settlement made an

order of the Court.