The HKSAR Government’s Department of Justice is responsible for the conduct of criminal prosecutions in Hong Kong. Any person charged with an offence will be presumed innocent unless and until proven guilty by the Court of law. Such fundamental right is enshrined in Article 87 of the Basic Law of Hong Kong.
In this article we provide an overview of the criminal procedure in Hong Kong, focusing on areas including arrest, bail, investigation, trial and verdict. This article does not constitute legal advice and it is vital that, if you find yourself involved in a criminal investigation proceeding in Hong Kong, you should seek immediate guidance from an experienced criminal lawyer.
Reporting the Crime
At the start of any criminal proceeding is the reporting of a crime. This is usually done by either the victim, a witness of a crime, or a police officer. In the first and second instances, a person who believes he/she has either been the victim of a crime or a witness of a crime can report to a police station to file an official criminal complaint. An initial triage will be conducted by the reporting officer and an investigator will be assigned to the case if it is believed that a crime was committed. Urgent crimes can be reported by calling 999 and less time sensitive crimes such as cybercrimes can be reported on the Hong Kong Police Force’s e-Report Centre Police Public Page.
The Arrest
Under Section 50 of the Police Force Ordinance (Cap 232), a police officer is empowered to arrest any person who he/she reasonably believes will be charged with, or whom he/she reasonably suspects of being guilty of any offence for which the sentence is fixed by law (e.g. murder) or for which he/she may be sentenced to imprisonment on a first conviction.
An arrested person can be detained for investigation for not more than 48 hours from the time of arrest. If the arrested person is not granted police bail, the police must, as soon as practicable, bring the arrested person to appear before a Magistrate for further direction. Further, the police can also detain an arrested person for up to 72 hours if a warrant for arrest and detention in respect of deportation is applied for. It is crucial that you are aware of your rights if you are arrested – most importantly, that you have a right to be informed why you are being arrested, that you are entitled to have a lawyer present during any interview with the police, and that you also have a right to silence.
Police Bail
Police bail is the conditional release of an arrested person until a future date and time when they are expected to appear in Court or report to the law enforcement. Depending on the seriousness of the offence, an arrested person may be released on bail by the police. In such case, once a charge has been laid against the arrested person, bail is normally extended until the first Court hearing.
If police bail is granted, the police will request the person to enter into a recognizance for a reasonable sum of money. The arrested person will be required to report to the police station or appear in Court on a certain date for what he/she is charged. In Hong Kong, criminal cases start in the Magistrates’ Court, after which it may move to the District Court or High Court.
Investigation
In the investigatory part of the criminal process in Hong Kong, the police will gather evidence and interrogate witnesses to decide whether a) a crime has been committed and b) whether it was committed by the suspect. In general, the more complicated the crime the longer the investigation. If there is not sufficient evidence to proceed with the case it will be closed. Otherwise, a criminal charge will be laid against the suspect, he/she will become a defendant and he/she will be asked to take plea (i.e plead guilty or not guilty) in Court. If a defendant pleads guilty, the Court will hear the mitigation submissions and sentence the defendant. If he/she pleads not guilty, the Court will fix a date for trial.
Trial
Depending on the seriousness and expected sentence of the case, the trial venue will be stayed at the Magistracy, be transferred to District Court or be committed to the Court of First Instance (sitting with Jury). The prosecution will call evidence to prove its case. It is worth noting that the prosecution bears the burden to prove beyond reasonable doubt that the defendant committed the crime. The defendant needs not prove his/her innocence.
Verdict
Following a trial, the Court (or the Jury) will deliver a verdict – guilty or not guilty. If a defendant is convicted, the Court will hear the mitigation submissions and proceed to sentencing. In Hong Kong, there are a variety of sentencing options, including a fine, Community Service Orders (CSO), probation and jail.
Get in touch with our team of experienced Criminal Lawyers to find out how we can support you if you are arrested by law enforcement. We will work with you to make you aware of certain strategies which may help determine whether you are charged or convicted. We will provide you with advice on plea. If you decide to plead guilty, we will mitigate on behalf of you in order to persuade the Court to order a lenient sentence.
Glossary
- Arrest: placing a person, by legal authority, in custody.
- Bail: the temporary release of a suspect in exchange of security. This is often in the form of money.
- Crime: an action or omission which constitutes an offence and is punishable by law.
- Defence: in the criminal process, the defendant may raise a defence in an effort to avert criminal conviction.
- Prosecution: a prosecutor acts on behalf of the community in an impartial manner and as a “minister of justice” trying the case against a person accused of a crime bringing proceedings against someone (in this case, the defendant).
- Sentence: the penalty a Court imposes someone guilty of an offence.
- Suspect: someone thought to be guilty of a crime.
- Trial: a formal meeting in Court in which evidence about crimes is presented to a judge and sometime with juries.
- Verdict: the formal decision or judgment given by a Court at the end of a trial or legal proceeding.
