LLAW3099 Criminal Procedure

LLAW3099 Criminal Procedure

Chapter 4: Commencement of Criminal Proceedings

Learning objectives
1. Classification of criminal offences;
2. Functions of the SJ in criminal proceedings
3. Private proceedings;
4. Forms of commencement of criminal proceedings;
5. Format of complaint or information;
6. After the accused is served with the charge sheet/ summons/ notice of intended prosecution/
fixed penalty notice

1. Classification of criminal offences

1.1 Generally

Offences can be classified into three ways: CPO s.14A

- Triable summarily
o Unless declared to be treason
o Unless “indictment” appear
o Unless transferred to DC by MO Part IV
- Triable on indictment
o Treason
o Indictment
- Triable either way
o Declared to be triable both ways

Offences are tried summarily in MC, while tried upon indictment in

DC and CFI.
- MC: summarily before a magistrate, on a charge
sheet/summons, under MO and CPO
- DC: upon indictment before DC judge, on a charge sheet
(different from MC), under DCO and CPO
- CFI: upon indictment before CFI judge and jury, on
indictment, under CPO

1.2 Triable summarily

Offence that is triable summarily only is tried in MC unless:

- Transferred to DC (committed offence that is triable MO s.88(1)(b)
summarily only and indictable offence not in Part III of MO
Sch.2)
- Transferred to CFI CPO s.79F

Laying information for offences triable summarily only shall take MO s.26
place within 6 months.
- Magistrate has no jurisdiction to deal with the complaint out R v Cheung Kwok-
of time cheung

1.3 Triable on indictment

Maximum sentence for indictable offence which no penalty is CPO s.1011

otherwise provided is 7 years.

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- For perverting the course of justice, the sentence and penalty

are the maximum that can be imposed by the sentencing
court

IMPORTANT: Indictable offences can be triable summarily MO s.14A(5)

unless otherwise stated by magistrate court.
MO Sch.2 Cannot be tried by
Part I offences Special magistrate, permanent MO ss.91, 92
magistrate
Part II offences Special magistrate MO s.91
Part III offences Special magistrate, DC judge MO ss.88, 91
- Special magistrate can try indictable offences not on Sch.2
- Permanent magistrate can try indictable offences except Part
I of Sch.2
- DC judge can try indictable offences except Part III of Sch.2
- E.g. Murder which is a Part I and III offence can only be
tried by CFI judge
- Cf. Procedure for indictable offences triable summarily MO s.93
o As if offence is punishable on summary conviction
o Provisions on summary offence would apply
o *Consent shall be obtained from the Prosecution MO s.94A

There is generally no time limit for laying of information for

indictable offences. But excessive delay may lead to stay of
proceedings.

1.4 Triable either way

1.5 Classification of offences and sentencing jurisdiction of court

Court Section One offence More than

one offence
Special Warrant of No No
magistrate appointment imprisonment imprisonment
Permanent MO ss.57, 92 2 years 3 years (to run
magistrate (subject to consecutively)
override*)
DC DCO s.82 7 years 7 years
CFI HCO s.3 Life Life
- MO s.92: “provided that nothing in this section shall affect
any greater or less punishment specifically provided for in
any other Ordinance”
- NB no similar proviso for DCO and HCO

Examples of how these sections operate:

- Possession of imitation firearms – triable summarily only but
statute provides max. 7-year imprisonment (see MO s.92)
- Indecent assault – triable on indictment with max. 10-year
imprisonment
o If tried by permanent magistrate, 2-year
imprisonment
o If tried by DC judge, 7-year imprisonment
o If tried by CFI judge, 10-year imprisonment

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- Keeping a vice establishment – summary conviction with 3-

year imprisonment or on indictment with 10-year
imprisonment
o If tried by permanent magistrate, 3-year MO s.92
imprisonment
o If tried by DC judge, 7-year imprisonment
o If tried by CFI judge, 10-year imprisonment
- Loitering – triable summarily for 6-month imprisonment
o If tried by permanent magistrate, 6-month
imprisonment
o If transferred to DC, 6-month imprisonment

2. Functions of the SJ in the criminal proceedings

2.1 Institution of proceedings

Criminal proceedings are primarily instituted by SJ.

2.2 Decision to prosecute

SJ has independence to control criminal proceedings as he thinks BL 63, RV v

best; SJ is protected from political interference and judicial Director of
encroachment. Immigration

Secretary for Justice is ultimately responsible for all prosecution

decisions.

SJ shall not be bound to prosecute if he is of opinion that interests of CPO s.15

public justice do not require his interference.

Decision to prosecute is based on sufficiency of evidence and public

interest.
- Sufficiency of evidence Prosecution Code
o Legally sufficient: admissible and reliable evidence, para.5.4-5.7
with reasonable inference, is likely to prove offence
o Test is “reasonable prospect of conviction”
o Insufficient evidence then public interest is not
served when prosecuted
- Public interest
o No exhaustive list of considerations; examples in the Prosecution Code
Code para.5.8-5.9

Decision to prosecute may exceptionally be judicially reviewed. RV v Direction of

- In obedience to political instruction and not on merits Immigration
- Acted in bad faith
- Rigid fettering of discretion

2.3 Certain offences require SJ’s consent to prosecute

These offences include: POBO Part II offences.

Some may require consent of CE: piracy and other offences at sea
(Crimes Ordinance Part III)

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2.4 Decision as to venue of criminal proceedings

The decision rests on the SJ, who shall have regard of, e.g. the Prosecution Code
maximum penalties. para.8.4
- Choice of venue for prosecution is clearly a matter covered Chiang Lily v SJ
by BL 63 which gives control to SJ without interference

2.5 Discontinuance of proceedings

SJ may discontinue proceedings on the merits of the case. BL 63, Re C

3. Private prosecution
3.1 MO provides for private prosecution of criminal proceedings begun MO s.14
by persons other than SJ or persons acting on his behalf.
- May without any prior leave
- Subject to intervention by SJ at any stage of proceedings
- SJ may discontinue by entering a nolle prosequi MO s.15

4. Forms of commencement of criminal proceedings

4.1 Generally

There are three ways of commencing criminal proceedings:

- Laying of information before magistrate
- Filing a Notice of Intended Prosecution
- Issuing fixed penalty notice

4.2 Laying of information before a magistrate

Information shall be laid for indictable offence, including a statement MO s.75

of offence with particulars necessary for providing reasonable info.

If the accused was arrested and charged for an indictable offence, the
police prepares a written charge sheet.

If the accused was not arrested for an indictable offence, the MO s.72
magistrate may issue a summons and/or warrant for his arrest.
- Laying of information by the police in the absence of the
accused

If the accused was not arrested for an offence that the magistrate can MO s.8
convict summarily or make an order for payment, a summons can be
issued.

If a summons is issued, it must be duly served. MO ss.8(2)-(4)

- If it was sent by post and the person does not appear, then
the service is deemed to be never effected and shall be
served by hand
- Magistrate may not issue a summons where D appears
voluntarily / upon his recognizance / in police custody

Summons may be cancelled by the magistrate where practicable MO ss.8(5)-(6)

upon first hearing the complainant/informant.

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Magistrate may issue a warrant of arrest for failure to answer to MO s.9

summons.

4.3 Filing a Notice of Intended Prosecution

Criminal proceedings may be commenced by filing (with MC) and MO s.7D

serving a Notice of Intended Prosecution if:
- Maximum fine does not exceed $10,000 and imprisonment
for 6 months
- Service within 14 days of filing

Notice shall, e.g. be in prescribed form, signed by public officer,

stating the particulars of D, the offence.

4.4 Issuing of fixed penalty notice

Liability of conviction may be discharged by way of payment of Fixed Penalty

fixed penalty within prescribed period. (Criminal
- Police officer has reason to believe that a person is Proceedings)
committing or has committed the offence Ordinance s.3
o Once payment is made, no record of criminal
conviction
- CP of the opinion that person alleged to be guilty of
scheduled offence
o Notice served as soon as practicable, within 1 month
o No proceedings taken until expiry of 21 days after
date of notice

5. Format of complaint or information

5.1 Charge sheet or summons shall comply with statutory requirements. MO ss.10(2), (4)
- For every distinct offence, there shall be a separate
complaint/information
- They shall be tried separately unless:
o They are of the same or similar character
o They are in one series of acts so connected together
so as to form the same transaction
o Doubtful which of several offences the facts which
can be proved

6. After the accused is served

6.1 It is important to check:
- Whether there is proper service
- Whether the charge sheet complies with prescribed rules
- What are the particulars of the offence
- Whether the accused understands the allegations
- When and where must the accused appear in court
- Whether personal attendance is required
- Whether offence is time-barred
- What is the maximum sentence and usual sentence
- What is the deadline of disputing/paying fixed penalty notice