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Business in Context BUSS TRAN A803BF Hong Kong Legal System and Legal English Lecture 8 – How Law is Proceed 1 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. 2 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. 3 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. 4 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. 5 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. 6 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. 7 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. 8 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. 9 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. 10 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 11 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. 12 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. 13 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. 14 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. 15 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. 16 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 17 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. 18 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 19 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 20 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 21 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 22 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. 23 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. 24 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. 25 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.
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