Facing criminal charges in Hong Kong can be a daunting experience, with complex legal procedures and potentially severe consequences. In case you are facing police investigation and criminal prosecution, it is of utmost importance to know your rights as the arrested, the court procedure in criminal cases, and to find the right legal team that tries to achieve the best possible outcome for yourself.
This guide provides an overview of criminal defence in Hong Kong, encapsulating key aspects such as different types of criminal offences, rights of the arrested, different stages of criminal litigation, usual defences, and how our team of criminal defence lawyer at Ho & Partners can protect your interests.
What is Criminal Defence in Hong Kong
Criminal defence involves representing individuals or companies or organisations charged with criminal offences in trials at various level of Courts, ranging from Magistrates’ Courts to the Court of Final Appeal.
In Hong Kong, criminal law covers a broad spectrum of offences, including commercial crimes, assault, drug trafficking, fraud, money laundering, traffic offences and cybercrimes, each with their own penalties.
Criminal defence lawyers specialise in safeguarding the accused’s rights and ensuring a fair treatment of their client throughout Criminal litigation. The team at Ho & Partners has over 30 years of experience dealing with all law enforcement agencies in Hong Kong, in particular the Hong Kong Police Force, ICAC, the Securities & Futures Commission (SFC), the Hong Kong Customs and Excise Department and the Immigration Department. Our team has been dedicated to offer tailor-made solutions to each client by taking their needs and interests into account.
At every stage of criminal litigation, from the arrest, bail application, mention, pre-trial review, sentencing, trial to appeals, our team strive to provide professional advice and timely support to our clients.
Criminal Liability and Types of Criminal Offences in Hong Kong
Criminal liability consists of two elements: (1) the guilty act or omission, referred to as “actus reus”, and (2) the prohibited state of mind or guilty mind known as the “mens rea”.
To establish most criminal offences, the prosecution needs to prove the above two elements (i.e. actus reus and mens rea) beyond reasonable doubt. However, when it comes to “Strict Liability Offences”, the prosecution needs not to prove the mens rea to establish criminal liability.
Criminal offences in Hong Kong are divided into 2 main categories: summary offences and indictable offences
- Summary Offences are often less serious offences such as public places obstruction, touting or traffic violations, and result in a lesser punishment. Summary offences are usually tried in the Magistrates’ Courts. Other examples of summary offences are hawking, some traffic offences (such as careless driving) and littering. For some offences like theft, dangerous driving or common assault, they can be tried either summarily or on indictment. The time limit for prosecuting a Summary Offense is generally six months from the date the offense was committed (unless otherwise specified in the legislation creating the offence).
- Indictable Offences can be tried in the Magistrates’ Courts, the District Court, or the Court of First Instance of the High Court. The choice of trial venue is determined by the prosecution, which typically takes into account the case’s complexity and the potential sentence for the offender if convicted. Examples such as manslaughter, rape or drug trafficking. There is no formal time limit for initiating prosecution for an indictable offense.
Pre-trial stage – Being Arrested in Hong Kong – What are your rights?
When you are arrested, you should remind yourself of the following rights which can empower you during the criminal defence process:
- Right to be informed
You should be informed by the police officer of the reason for the arrest. If the police officer fails to give you valid explanations or details of the suspected charge, such arrest should be considered as unlawful.
- Right to remain silence
You have the right not to be compelled to testify against yourself or to confess guilt. Such right is known as the right to remain silence by virtue of common law and Article 11(2g) of Section 8 of the Hong Kong Bill of Rights Ordinance (Chapter 383).
You can refuse to answer any questions by the police officer.
However, you may need to provide your name, and address to the police during the arrest. For case of a road traffic offence, if you are the driver of a vehicle, you must give your name, address and driving licence number to the police upon request.
- Right to Legal Representation
You have the right to consult with and be represented by a lawyer.
Note: The abovementioned rights are not exhaustive. For a complete list of entitled rights, please refer to the “Notice to Persons in Police Custody or involved in Police enquiries” (Pol. 153).
Trial Stage: Court Procedures in Criminal Cases
In Hong Kong, the Department of Justice of the HKSAR Government is responsible for conducting criminal prosecutions.
Everyone is presumed innocent until they are convicted by the court. The presumption of innocence is a fundamental right underpinned by the common law and Article 87 of the Basic Law of Hong Kong.
During mention hearing, the court will ask the accused whether they plead guilty to the charge or not. If they plead guilty, the court will convict them and impose sentence where appropriate. However, upon conviction, the Court will give the accused or their lawyer the opportunity to present matters that may persuade the Court to impose a more lenient sentence.
On the other hand, if the accused pleads not guilty, the case will proceed to a trial and the court will be invited to determine whether the accused is guilty.
During the trial, the burden of proof lies on the prosecution. In other words, the prosecution needs to produce sufficient evidence in order to persuade the court that each and every element of the offence has been proven “beyond any reasonable doubt”. Otherwise, the accused should be acquitted. It is not necessary for the accused to prove that they are not guilty. However, the accused is at the liberty to decide whether or not to give evidence at the trial. It would be in the best interest of the accused to seek for independent legal advice at each and every stages.
Read More: Detailed Criminal Procedure in Hong Kong
Read here for a detailed overview of the criminal procedure in Hong Kong, including arrest, police interview, bail application, mention hearing, Offer No Evidence Bind Over, Pre-trial Review, trial, sentencing, appeal and retrial.
Usual Criminal Defences in Hong Kong
Effective criminal defence strategies vary on the specific charges and depends on each case’s own circumstances. Usual defences include:
- Self-Defence: It operates as a ‘justification’ for the action taken or force used by a person against another person to defend himself, another person, his property or another person’s property. However, the court would consider if in all the circumstances that person genuinely believes that it is necessary for him to defend himself and the amount of force involved is reasonable.
- Duress by threats: The accused or their defence lawyer can assert that the accused were compelled to or forced by another person to commit an offence due to threats or the accused reasonably believed threats have been made. The accused may be acquitted if they successfully raise such defence. However, the accused needs to satisfy the court’s multiple requirements to establish the validity of this defence, including but not limited to showing that he was impelled to act if he failed to do so, himself or a member of his immediate family or a person for whose safety he reasonably felt responsible could be killed or seriously injured either immediately or very soon thereafter.
- Procedural Errors/Irregularity: Any violation of the legal procedures by law enforcement authorities, including unlawful search or improper handling of evidence or the failure of the police officer to caution the accused before taking statement, these procedural errors may constitute valid grounds for dismissing the case.
Advantages of Hiring a Criminal Defence Lawyer in Hong Kong
Hiring a qualified criminal defence lawyer therefore offers several advantages to help you navigate the complexities of Hong Kong’s criminal litigation system given that:
- They have expert knowledge and understand the intricacies of the Hong Kong criminal procedures and can provide tailor-made strategies for you at every stage;
- They can evaluate evidence and identify weaknesses in the prosecution’s case;
- that they can negotiate with prosecutors to reduce charges or sentences (when appropriate);
- that they can work with the right counsel to present the defence evidence and argue on your behalf in court; and
- that they can prepare for the appeals process if you are convicted after the trial.
Conclusion
If you are arrested for a crime or under any criminal investigation in Hong Kong, remain calm, exercise your own rights, and request to speak with a criminal defence lawyer as soon as possible to obtain professional advice.
Find out more about how our team of criminal defence lawyers at Ho & Partners have helped clients by visiting here and get in touch with a member of the team if you would like to discuss your case further.
Disclaimer: The information and materials contained or referred to on this website are for reference only. Any advice or information received from this website should not be relied upon without consulting professional advice from criminal defence lawyer. If you are charged with an offence in Hong Kong, you are recommended to obtain such professional advice where appropriate.
