Following the common law system introduced into Hong Kong when it became a Crown colony, Hong Kong's criminal procedural law and the underlying principles are very similar to the one in the UK. Like other common law jurisdictions, Hong Kong follows the principle of presumption of innocence. This principle penetrates the whole system of Hong Kong's criminal procedure and criminal law. Viscount Sankey once described this principle as a 'golden thread'. Therefore, knowing this principle is vital for understanding the criminal procedures practised in Hong Kong.
Principle of presumption of innocence and its extended rights Apart from case law, Hong Kong also enacted a series of statutes to ensure the principle of presumption of innocence and its extended rights promptly implanted and recognised by the government and the society.
Prosecution
Right to institute criminal prosecution There is not a rule or law explicitly saying that the absolute right to institute a criminal prosecution is given to the Government. Thus, theoretically, the general public or individuals are allowed to prosecute. Moreover, Section 14 of the Magistrates Ordinance (i.e. Chapter 227) gives guidance on how the Secretary for Justice intervenes and assumes a private criminal prosecution. This provision indeed indirectly points out the possibility of private criminal prosecution. However, practically, private criminal prosecution does not exist because of the expensive costs involved in criminal prosecutions, the lack of manpower, resources, and special statutory powers to carry out a thorough investigation, the exclusive right for the Secretary for Justice to get involved or even take over private criminal prosecutions, the requirement of beyond reasonable doubt of evidence, etc. Consequently, the Secretary is the only one who institutes almost all the criminal prosecutions in Hong Kong. In fact, the Secretary who is the head of the Department of Justice is the person who has the sole power to control all criminal prosecutions independently. The Basic Law, Article 63, describes:
Decision to prosecute
Two questions Before instituting a criminal prosecution, the Secretary or the prosecutor must first address two questions: Is the evidence sufficient to justify the institution or continuation of proceedings? If it is, does the public interest require a prosecution to be pursued?
Discretionary power Criminal Procedure Ordinance Section 15(1) states
Therefore, the Secretary has discretionary power in determining whether or not to prosecute and is not required to prosecute in every single case. A good example is the well-known controversy involving the former Secretary for Justice, Ms Elsie Leung. In 1999, Ms Elsie Leung refused to prosecute Sally Aw over the circulation fraud at The Standard.
Apprehension
Officers being Monitored
Under Article 28 of the Basic Law, strictly speaking, when a police officer or government agent stops a pedestrian or a car on the street, the officer indeed actually limits and restricts the person's freedom at the very precise moment he or she stops the person. Thus, the officer is required by law to have some reasons in order to be lawful to stop someone on the street. If not, the stop will be considered as unlawful and the officer may be subject to civil lawsuit (tort). Using Section 54(1) of the Police Force Ordinance as an example, one can see how the law regulates and enables a police officer to simply stop a pedestrian. There is no doubt that the law is going to scrutinise every single move a government agent takes to arrest anyone.
Power of arrest Many government departments and agencies, like the police force, ICAC, immigration officials etc., have the power to arrest a suspect. This power of arrest is granted and regulated by law. But before an officer can actually arrest anyone, he or she is required by law to request an arrest warrant from a magistrate. If not, the person been wrongfully arrested can sue the officer for damages. The procedure is to protect the public's freedom from the potential abuse of power. Apparently, this is impossible to ask every government agent to request a warrant before arresting anyone in every case, especially in an emergency. For example, it would not be feasible for a police officer to ask for a warrant first and then go back to the crime scene of a bank robbery to arrest the robber. Hence, the law is somewhat flexible when it comes to determining whether or not an arrest is lawful. Still, all is under the control of law. For instance, Section 50 of the Police Force Ordinance considers an arrest to be lawful even without a warrant if:
Warnings Hong Kong Bill of Rights Ordinance, Article 5(2) requires:
This piece of legislation is for the purpose which ensures the person arrested fully understands that his freedom is restricted from that moment. It also prevents the person arrested from attacking the officers because of any misunderstanding. Thus, officers are required to use plain language to inform the person arrested. Using vague words or phrases, like "please come and assist our investigation", does not institute an arrest and can be treated as a mere invitation; the "invited person" may thus kindly refuse. If the officers in an apprehension did not follow any guidance, such conduct could be treated as false imprisonment and the wrongly arrested person could sue for damages.
In addition, from the moment issuing the warning and successfully arrested the accused, it signals the beginning of an apprehension. Within 48 hours of an apprehension, the officers must (1) issue a charge sheet and officially charge the accused or (2) bring the accused before a magistrate for further instruction or (3) let the accused be bailed out, according to the instruction under Section 52(1) of the Police Force Ordinance:
Right to bail Before 1990, admission to bail was not a fundamental right, even though it could be extended from the principle of presumption of innocence. So, back then, if the accused did not know or request to for admitting to bail, the accused could literally be stuck in a police station forever. But in 1991, the law changed. In 1991, the government enacted Hong Kong Bill of Rights Ordinance, Article 5(3), which recognises the right to bail. Like many other fundamental rights, the right to bail is not absolute. Depending on the situation, the police or the prosecutor may refuse the accused from admitting to bail (like, if the prosecutor believes there is a strong possibility that the accused would annoy or threaten any witnesses of the case). Under that situation, the accused may request to bring the question before a magistrate. If the magistrate follows the prosecutor's advice and refuses the accused from admitting to bail, the accused still has the last chance to bring the question to the High Court. By the same token, if the magistrate allows the accused to bail, the prosecutor can also bring the question to the High Court.
After the imposition of the Hong Kong national security law the right to bail has been changed. According to the ruling from the Jimmy Lai case at 09FEB2021 from Court of Final Appeal (Hong Kong), "Article 42 stipulates that no bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing he or she will not continue to commit acts endangering national security."
Writ of habeas corpus A writ of habeas corpus is a writ issued by a court and has binding effect. The right to request a writ of habeas corpus has its origin in the principle of presumption of innocence. The writ of habeas corpus is to protect individual freedom from arbitrary detention or arrest. The High Court Ordinance, Section 22(A), gives clear guidance on the application for and issue of writs of habeas corpus:
The law does not limit the right to request a writ of habeas corpus to only the accused; some other people can request it on their behalf.
Choosing the right court
Categories of crime In Hong Kong, illegal activities are classified into three categories: CategorySeverityComplexityExamplesSummary offencemoderateclearspeeding, litteringIndictable offenceseverecomplexmurder, rapeEither way offence, or indictable offence triable summarilydependsdependstheft; arson
Powers of trial courts In Hong Kong, the trial of a criminal offence can take place in one of the three kinds of courts:
Trial courtMaximum sentencing powerCase hearing abilityMagistrate's Court2 years of imprisonment; Fine $100,000 (if more than one offence at the same time, 3 years of imprisonment)summary offence; either-way offenceDistrict Court7 years of imprisonmentsummary offence; either-way offenceCourt of First Instance of the High Courtlife imprisonmentindictable offence; either-way offence
Prosecutor's decision In Hong Kong, written rules and laws explicitly define each trial court's rights, powers, responsibilities, and limitations. However, the uniqueness of each criminal case makes it difficult to decide which court a case should be tried. This is especially true for either-way cases. However, since the prosecutor is the one who institutes the prosecution and the proceeding, it makes the prosecutor have the right to choose which court an either-way case should be tried. Consequently, it also indirectly makes the prosecutor have the right to decide the maximum punishment of any given cases.
Summary proceeding
Beginning the process In Hong Kong, every criminal case begins at a magistrate's court, regardless of its severity and complexity. But, under the spirit of separation of powers, a magistrate, being part of the judicial branch, has no right to actively start a criminal prosecution and must wait for someone to bring up a complaint before him or her. Thus, the Secretary for Justice must bring a complaint or case before a magistrates' court. The Secretary for Justice can do that by issuing one of the three types of documents:
DocumentCase conditionsNotice of prosecution(1) no apprehension (2) not exceeding 6 months of imprisonment and $10,000 of fineInformationno apprehensioncharge sheetinvolved apprehension
Notice of prosecution The notice of prosecution must contain information about the accused's name, address, the details of the crime (including time and location), and the related consequences (punishment). After the prosecutor files the notice of prosecution to the court, the prosecutor must mail a copy of the notice to the accused following the detailed guidance provided in Section 7D(1) of the Magistrates Ordinance. Along with the notice, the prosecutor must also provide and enclose a statement of confession and a letter of instruction telling the accused how to institute a legal proceeding if the accused refuses to confess and admit committing the crime. In the letter of instruction, the prosecutor must also provide information about which court will be handling the case, and the deadline for requesting a trial. Provided in Section 7D(2) of the Magistrates Ordinance, the deadline for requesting a public trial must not be fewer than 35 days from the day which the prosecutor files the notice.
Because issuing notice of prosecution as a way to prosecute is only available to very minor offences. The consequences of these offences are most likely to result in paying fines. Therefore, very likely, the accused will pay the fine and return the statement of confession to the court. Still, the accused can request a public trial and follow the instruction provided along with the prosecution notice. If that happens, the following procedure will take place as if the prosecutor has laid an information before the magistrate and asked the court to summons the accused. In addition, if the result, upon conviction, may be more severe consequences other than paying fines, the accused will still be summonsed and must attend the court's hearing.
Information and summons