TRAN A803BF Hong Kong Legal System and Legal English Lecture 8 – How Law is Proceed

1 8.1 Criminal

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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• Criminal 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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• 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 . All these offences carry a maximum penalty of life .

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--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 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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(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 .

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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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(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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• 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 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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8.1.2 Criminal Procedure 8.1.2.1 Criminal Procedure in the Magistrates Court Summary Trial • -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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• Report Before sentencing, the Court would request for a report, e.g. report, if necessary. • Mitigation The Court would allow the offender to mitigate. • Sentence

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--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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--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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--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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--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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--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. • 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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• 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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8.1.2.2 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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• 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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• 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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--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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--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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8.1.2.3 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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• 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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• 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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• 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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--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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--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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• 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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• Jury to give verdict In all crimes, including murder, a majority verdict of five to two will be sufficient for a . 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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8.1.3 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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• 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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8.1.3.2 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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• 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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• 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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8.1.3.3 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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• Flowchart for Criminal Procedure --Magistrates Court --District Court --Court of First Instance, High Court

37 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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8.2.2 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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• 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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• 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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• 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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• 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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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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• 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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• 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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• 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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• 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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• 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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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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• 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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• 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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• 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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• 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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• 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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• 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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• 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.

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