Académique Documents
Professionnel Documents
Culture Documents
Learning objectives
1. Introduction;
2. Arraignment (before Judge only);
3. Determination of Preliminary Issues before Judge only;
4. Empanelling of Jury;
5. Putting the Defendant into the Charge of the Jury;
6. Prosecution’s Case;
7. Determination whether Defendant has Case to Answer;
8. Defence’s Case;
9. Closing Submissions;
10. Summing up by the Judge;
11. Retirement of Jury until Verdict;
12. Verdict of Jury;
13. Discharge of Jury after Verdict;
14. Mitigation and Sentencing (before Judge only);
15. Outstanding Issues
1. Introduction
1.1 Mode of trial in CFI is trial on indictment. CPO s.41(1)
- Before a judge and a jury CPO s.41(2)
Defendants have not right to select the mode of trial, i.e. no right to Chiang Lily v SJ
trial by jury.
- Remember that the venue for trial is a decision made by SJ
Normal court hours for trial in CFI are from Monday to Friday:
- 10:00 to 13:00
- 14:30 to 16:30
After indictment but before arraignment, SJ can capply to CFI judge CPO s.65F
to transfer case back to DC/MC to be dealt with summarily.
- Entire proceedings shall be stayed until application is
disposed of unless judge orders otherwise
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Judge may allow the application (making an order of transfer) or CPO s.65F(4)
refused it, and make any cost order as appropriate.
Cases are listed either in the Fixture List or Expedited List. Cases to PD 9.3 paras.1.3.1-
be in the Expedited List (others in Fixture list): 1.3.3
- One defendant one legal aid
- Not homicide, sexual offences
- No vulnerable or overseas witnesses
- Only needs English / Chinese interpretation
- No evidence taken via MLA, LOR or live link
- Not more than 5 civilian witnesses
- Estimated trial length not more than 10 days
Milestone dates are set out for particular hearings which cannot be PD 9.3 para.1.4
vacated or adjourned unless justified on sufficient grounds with
approval of the court:
- Plea and sentencing hearing
- Case management hearing
- PTR
- Trial
- Other milestone dates set by the court
Failure to comply with the dates by the Prosecution or Defence may PD 9.3 paras.2.3-2.4
lead cost consequences and/or disciplinary actions.
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2. Arraignment
2.1 Generally
Exception: trial under the Complex Commercial Crimes Ordinance CCCO ss.9, 11, 12
- D may be arraigned at the preparatory hearing or until jury is
empanelled
1) Plea of not guilty => deemed to put himself for trial CPO s.50
2) Plea of guilty
a. Agrees with summary => mitigation and sentencing
b. Disagrees with summary => Newton Inquiry
3) Plea to the jurisdiction to the court (e.g. extraterritoriality of
offence or time bar) BL 48(13)
4) Plea that D has been pardoned (CE pardon)
5) Plea of autrefois acquit (already tried and acquitted)
6) Plea of autrefois convict (already tried and convicted)
Prosecution and judge not obliged to accept plea to lesser offence, R v Coward
where lesser offence is not a count on indictment.
If guilty plea to lesser/alternative offence was not accepted, it would HKSAR v Lee Wai
be treated as a nullity. Keung
Plea of guilty plea does not revive even if D is acquitted of offence to HKSAR v Lee Wai
which he has pleaded not guilty. Keung
Issues of law and admissibility of evidence are heard before trial CPO s.41(3)
judge only (after arraignment and before empanelment)
- Application for severance of trial
- Application for stay of proceedings
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Charges for any offences may be joined in the same indictment if CPO s.18, Indictment
those charges are founded on the same facts, or form or are a part of Rules rule 7
series of offences of the same / a similar character.
However, the court has discretion to sever the charges / order CPO s.23(3),
separate trials. HKSAR v Hui
- Exercisable at any stage before or during trial Rafael Junior
- Exercisable on parties’ application / court’s own initiative
Other instances:
- Multiples Ds are jointly charged in a single charge R v Moghai
- Multiple Ds charged in separate counts, with each involving R v Assim
a separate D
- Separate trials for conspiracy and substantive counts PD 9.1, Hui Shu-tam
vR
Permanent stay means the Court declines to try the case against D
even when the case has been brought by P.
- Inherent jurisdiction of the Court to prevent abuse of process HKSAR v Lee Ming
- Only justified in exceptional circumstances Tee
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Burden on Accused on the balance of probabilities that fair trial is HKSAR v Hon Ming
not possible. Question of stay is fact-sensitive. Kong
- Hon Ming Kong: would need to illustrate what the witnesses
would say in court, e.g. obtaining a witness statement, to
show real prejudice to trial
4. Empanelling of Jury
4.1 Generally
Selected randomly from statutorily qualified members, jury is drawn HKSAR v Chan
from a pool broadly representative of community. Huandai
- Fair cross-section principle for trial by impartial jury
Summon of a jury
- Names are placed into list of jurors and a provisional list is Jury Ordinance ss.7,
compiled 9
- Randomly draw jurors from the list by Registrar
- Summons will be sent so that they have to attend the Court Jury Ordinance ss.13,
17
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If juror fails to attend court having been served with a summons, he Jury Ordinance
may guilty of offence. s.32(1)
After swearing in, failure to attend and to provide reasonable cause Jury Ordinance
for it may be charged with contempt and sentenced to imprisonment. s.32(2), (3)
- Ho Kum Wai: juror lied about reasons for repeated failure to HKSAR v Ho Kum
attend trial; 3-week imprisonment Wai
Employer who terminates, threatens to terminate, the employment of, Jury Ordinance s.33
or in any way discriminates against, his employee, commits an
offence.
- Up to fine of $25,000 and 3-month imprisonment
Court may discharge juror where it is in the interest of justice or the Jury Ordinance s.25
juror to do so (or when he dies).
- Case can continue but cannot have less than 5 jurors; Jury Ordinance ss.24,
otherwise cannot return a valid verdict 25(4)
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Trial starts when jury is sworn in and D is put into charge of jury.
Indictment is read to jury.
Jury is kept together in somewhere in the court apart by themselves Jury Ordinance
(e.g. the Jury Waiting Room). s.22(1)
- Can only discuss the case and evidence among themselves
- Bound by evidence in court and not conduct own research
6. Prosecution’s Case
6.1 Prosecution opens the case with opening submission.
- It is bound by the boundaries set in the opening speech and is Hau Tung Ying v
not permitted, without proper justification, to shift its case HKSAR
during trial
- Not evidence and cannot be relied upon for return of verdict
A difference is that when legal issues are raised and objections taken,
jury is usually invited to return to jury room so that they are not
contaminated with inadmissible materials.
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8. Defence’s Case
8.1 If D is the only witness for Defence, no Defence opening speech. CPO s.55
- In practice, it is rarely made anyway because of the risk of D
or DW not coming up to proof
Normally, D would give evidence first before other DW. Carson Yeung
- But judge has no power to compel the order in which DW
are called
- Cf. UK where D must give evidence first (Police and
Criminal Evidence Act 1984 s.79)
9. Closing Submissions
9.1 Before closing submissions are made, judge will usually invite
parties to make representations on how certain aspects of the case
should be dealt with.
- Helps summing up and raise issues with D that would be put R v Chandler
to jury but was not raised during trial
Closing submissions are made by both sides with P closing first. CPO s.56(2)
- P has no right of reply
Should not read out from and/or refer to law reports or the Rules and Li Wing-loi v R
Directions for Questioning of Suspects and the Taking of Statements.
R v Sparrow R v Sparrow
- No notebook summing up
- Judge has a duty to give jury the benefit of his knowledge of
the law and to advise them as to the significance of evidence
- E.g. explain consequences of absence of D from witness box
R v Cheng Pak-chang
- Judge should remind jury of principal issues and the main R v Cheng Pak-
features of the case in a fairly balanced manner chang
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If not in agreement, judge has power to direct jury to deliberate Jury Ordinance
further for any cause to be desirable. s.24(5)
Judge must not create the danger of jury being put under undue Cheung Chi Keung v
pressure to reach a verdict. Otherwise, conviction may be quashed HKSAR
on appeal.
- Failure to direct jury that they would be directed further if Cheung Chi Keung v
they are unable to achieve the requisite majority HKSAR
- Failure to direct jury that if they are unable to reach verdicts HKSAR v
after full discussion, they must say so Amarasinghalage
If no legal majority can be reached even after further deliberation, Jury Ordinance s.27
court shall discharge jury and order retrial with new jury.
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Forfeiture proceedings are civil in nature; anyone who has a Wong Hon Sun v
proprietary interest in the property can come and intervene. HKSAR
Example:
(a) X is a drug trafficker who has just sold a consignment of drugs to
a buyer and received a suitcase containing $3 million in banknotes in
payment.
=> X commits the predicate offence of drug trafficking and the $3
million constitutes its proceeds with X benefiting $3 million. A
confiscation order in the amount of $3 million can be made against
X.
(b) X asks his friend Y (who knows where the money comes from)
to deliver the suitcase to Z, a professional money launderer. Y
receives nothing for doing this, merely acting because of his
friendship with X.
=> Y commits s.25(1) offence since he deals with the $3 million
which he knows or has reasonable grounds to believe represent X’s
proceeds of the predicate drug trafficking offence. However, since Y
has not himself benefited, no part of the $3 million constitutes “his
proceeds” of the predicate offence and the section 8(4)(a)
requirement of a benefit to Y is not satisfied. No confiscation order
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(c) Z receives the money and is allowed to keep $100,000 as his fee
after having dealt with the balance of the $3 million on X’s behalf in
ways designed to conceal its criminal origins.
=> Z commits a s.25(1) offence since he deals with the $3 million
which he knows or has reasonable grounds to believe represent X’s
proceeds of the predicate drug trafficking offence. His benefit from
those proceeds is his fee of $100,000 and a confiscation order can be
made against him to that extent. He can also be otherwise sentenced
for the section 25(1) offence.
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