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LLAW3099 Criminal Procedure

LLAW3099 Criminal Procedure


Chapter 7: Trial Process in the Court of First Instance before a Judge and Jury

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

A defendant’s attendance at criminal proceedings is dependent on the


bail conditions.
- Defendant tried in CFI must attend personally

1.2 Sitting hours

Normal court hours for trial in CFI are from Monday to Friday:
- 10:00 to 13:00
- 14:30 to 16:30

However, trial on the first day starts at 09:30.

Note that ‘Carrian hours’ (08:45 to 13:45) may be adopted so that


jury members can return to work in the afternoon.
- Application should be raised during pre-trial review (PTR)

1.3 Transfer from the CFI to DC / MC

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

SJ CANNOT apply to transfer case back to DC if case was CPO s.65F(13)


transferred from DC to CFI under DCO s.77A.

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LLAW3099 Criminal Procedure

Judge may allow the application (making an order of transfer) or CPO s.65F(4)
refused it, and make any cost order as appropriate.

1.4 Practice Direction 9.3

Right to a fair trial without delay under the principle of presumed BL 87


innocence.

Respective roles in the criminal proceedings:


- Court: giving effect to the due process of law; exercises its PD 9.3 para.2.1.3
jurisdiction in case management with a view to fairly,
efficiently and expeditiously managing the progress of the
case from beginning to conclusion
o Procedural timetables and milestone dates
- Parties: assist the court in case management; should not PD 9.3 para.2.3
warehouse the case between hearings; actively prepare case
for trial without constant recourse to court

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

After committal to the High Court, case management hearing and/or


pre-trial review are held.

Milestone dates in general

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

Main procedural steps:


- Case Management Questionnaire
- Case Management Hearing
o Admission of facts/witness statements; expert
evidence; preliminary issues; undisclosed materials
- PTR (if needed to fix remaining issues) [X in Expedited List]
- Certificate of Readiness for Trial

They should be followed whenever they are applicable. PD 9.3 para.1.5.1

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

Arraignment is the formal process whereby indictment is put to D CPO s.49


and is required to plead to it instantly; unfettered and not in prison
clothes unless court directs.
- Only before judge (jury is empanelled at a later stage)
- Accused must be present unless it is a corporation
- Each count is put separately to D R v Boyle

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

2.2 Types of plea by Defendant

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)

Note the possibility of reversal of plea.

2.3 Pleading guilty to a lesser offence

Pleading ‘not guilty’ to offence specifically charged on indictment, CPO s.51


then plead ‘guilty’ to lesser offence which he may be found guilty on
that indictment.
- Should be within the jurisdiction of the court CPO s.51(2)
- E.g. Not guilty to murder but guilty to manslaughter

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

3. Determination of Preliminary Issues before Judge only


3.1 Generally

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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- Admissibility of alleged confessions/admissions by D (only


voir dire but not alternative procedure)
o Should be raised before empanelment CPO s.41(3)

Accused should be present. If he is not in custody, the requirement of


attendance will be set out in the bail form.

3.2 Severance of trial [Quaere: is this available in lower courts?]

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

Reasons for severance: prejudicial or embarrassing to accused and Ludlow v MPC


separate trials are required in the interest of justice.
- Too numerous and complicated, too difficult to disentangle
sot that joint trial would cause confusion
- Scandalous nature and would trigger hostile feelings of jury
against D

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

3.3 Stay of proceedings

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

Two circumstances: HKSAR v Ng Chun


- Fair trial is impossible (notwithstanding remedial measures To Raymond
available to trial to ensure fair trial); public interest would
not warrant the holding of unfair trial
o Delay
o Unfair methods of investigation
o Crucial evidence is destroyed
o Adverse publicity in Kiseel is not sufficient
- Abuse of power even though a fair trial is available,
amounting to an affront to court’s sense of justice/propriety
o D unlawfully abducted into jurisdiction
- Ng Chun To: no abuse of process even though ICAC had
coached the witnesses since the witnesses might not even
testify

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LLAW3099 Criminal Procedure

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

Relevant procedures: PD 9.7


- Not less than 21 days notice before trial
- Can be made at any time during trial and more than once

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

4.2 Jury eligibility

Qualifications: Jury Ordinance s.4


- 21 or above but below 65
- Hong Kong resident
- Sound mind, not afflicted by blindness, deafness or other
relevant disabilities
- Good character
- Sufficient knowledge of trial language => court may
discharge the juror at any time if knowledge was insufficient

Exemptions: Jury Ordinance s.5


- ExCo or LegCo members
- Justice of peace
- Judges (and their spouses) and lawyers
- Police/ICAC/CSD/Army
- Social workers
- Medical practitioners/chemists
- Pilots
- Editors of daily newspapers
- Clergymen/priests
- Full-time students

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

4.3 Empanelling of jury

Jury is randomly picked by ballot from the jurors-in-waiting. They


are given names of the parties and potential witnesses involved to
ensure there is no conflict of interest. 7 or 9 jurors are on the panel.

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LLAW3099 Criminal Procedure

D has a right to challenge any jurors-in-waiting. This must be made


known to D.
- Up to 5 challenges without cause Jury Ordinance s.29
- Unlimited challenges with cause Jury Ordinance s.29
- Note that want of qualification or exemption shall be good Jury Ordinance s.6
cause of challenge but not of avoiding trial (i.e. impeaching
verdict reached by jury after this person is sworn)
- Challenge can be raised by counsel when juror is walking to
jury box to before they swear in (D will be asked again)

P can stand-by jurors-in-waiting; but this is not DOJ’s policy to


exercise this right.

Trial judge has residual discretion to excuse selected jurors-in- R v Mansell, R v


waiting, if he is obviously unfit or unsuitable to perform his duty. Ford

4.4 Selection of jury foreman

Jury foreman is selected amongst the jury.

All jurors are equal. Foreman only acts as spokesperson.


- He will pronounce the verdict at the end of the trial Jury Ordinance s.26

4.5 Non-attendance of juror

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

4.6 Discharge of juror or jury

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)

If number falls below 5, the remaining jurors will be discharged and


a new trial will be ordered.
- However, court has residual power to put so many fit and Jury Ordinance s.30
proper persons upon the panel (but this is rarely invoked).

5. Putting the Defendant into the Charge of the Jury


5.1 Generally

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Trial starts when jury is sworn in and D is put into charge of jury.
Indictment is read to jury.

5.2 Duties of jury

The jury’s duties are summarised as below: HKSAR v Chan


- Act independently, fairly and impartially Huandai
- Keep to the oath
- Act in good faith
- Follow the direction of trial judge
- Base deliberations and return verdict on evidence and
evidence alone
- Not introduce extraneous materials (<= Chan Huandai)
- Put aside extraneous prejudice

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

It is only after summing up and that jury retires to consider verdict


that jurors are required to stay together to the absolute exclusion of
the outside world.

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

Trial process is similar to other courts, e.g. DC.


- PW: Examination-in-chief => Cross-examination => Re-
examination
- Admitted facts are read

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.

7. Determination whether Defendant has Case to Answer


7.1 Trial judge must determine whether D has a case to answer, which is
a question of law. So submissions, if any, are made in the absence of
jury and heard before trial judge only.

Judge finds a case: jury returns and case continues with D.


- No mentioning of legal arguments / ruling of judge

Judge finds no case: judge should direct jury to acquit D on charges.


- Should no longer acquit/convict the accused by himself

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LLAW3099 Criminal Procedure

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

Trial process similar to other courts.


- DW: Examination-in-chief => Cross-examination by P =>
Re-examination by D
- Admitted facts are read

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.

10. Summing up by the Judge


10.1 (1) Court’s role

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

HKSAR v Chu Chi Wah (No 1)


- Must be fair and balanced; reasonable, impartial and fair HKSAR v Chu Chi
exaplanation Wah (No 1)
- Not usurp jury’s function as the sole arbiter of facts; not give
impression that jury to accept his view
- Should not give the impressions it is P’s second speech
- Unbalanced summing up not saved by usual reminder or
direction

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LLAW3099 Criminal Procedure

Lin Pin Keung v HKSAR Lin Pin Keung v


- Must avoid the use of sarcastic, unnecessary, inappropriate HKSAR
or even extravagant language

Chow Wai Choi v HKSAR


- Judge may call upon Defence Counsel to provide him with Chow Wai Choi v
list of points made for the defence HKSAR
- Not always necessary

The court should also remind the jury of their role.

(2) Prosecution’s role Bar Code para.10.39


- If there is an error on the fact/law in the summing up, P shall
draw the court’s attention at the end of summing up in the
absence of jury

(3) Defence’s role


- If D spots procedural irregularity, D should inform the court
and not save this matter on appeal
- For other substantive matters, they can be saved in the Bar Code para.10.60
appeal
- D is NOT any duty to draw matters of fact or law to the
attention of the court

11. Retirement of Jury until Verdict


11.1 Jury should be kept together when deliberating. Jury Ordinance
- Deliberation does not usually go beyond 8pm s.22(2)
- If no verdict, jury will be called into court and not to
deliberate further but continue deliberation the next morning
- They will stay in Court Jury Quarters overnight

Trial judge makes further order on D’s bail conditions. D usually is


required to stay within the High Court.
- If no verdict, judge may order bail or D be remanded in jail

12. Verdict of Jury


12.1 Judicial clerk asks the foreman in open court before all parties: Jury Ordinance s.26
- Have you reached a verdict?
- If yes, then is the verdict one upon which you all agreed?
- If no, by what majority have you arrived at the verdict?
- If unanimous verdict or acceptable majority, then what is
your verdict?

Acceptable majority verdicts: Jury Ordinance s.24


Total jurors Valid verdict
9 jurors 9:0, 8:1, 7:2
8 jurors 8:0, 7:1, 6:2
7 jurors 7:0, 6:1, 5:2
6 jurors 6:0, 5:1
5 jurors 5:0

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LLAW3099 Criminal Procedure

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.

13. Discharge of Jury after Verdict


13.1 Duties of jury are completed after verdict is delivered.

14. Mitigation and Sentencing (before Judge only)


14.1 It is for the judge to hear submissions on mitigation and sentencing.
It is the duty of the judge to rule on the sentence.

15. Outstanding Issues


15.1 Generally

Outstanding issues after D is convicted and sentenced or acquitted:


- Costs
- Disposal of exhibits
- Forfeiture proceedings
- Confiscation order

15.2 Disposal of exhibits

Factors for consideration:


- Whether D is convicted
- The rights of the rightful owner
- Nature of evidence

Orders that can be made by trial judge:


- Destruction (e.g. drugs, weapons)
- Confiscation (money/proceeds of criminal offence)
- Keep in court file (documents)
- Keep in custody of investigating authority (e.g. copies of
seized documents if too much for court)
- Return to owner (e.g. stolen property)

15.3 Forfeiture proceedings and confiscation orders

Forfeiture means forfeiting the actual property used in crime or


intended to be used in the crime.
- Dangerous Drugs Ordinance s.56: forfeiture of articles used
in connection with offence

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- Drug Trafficking (Recovery of Proceeds) Ordinance s.24:


forfeiture

Forfeiture proceedings are civil in nature; anyone who has a Wong Hon Sun v
proprietary interest in the property can come and intervene. HKSAR

Confiscation order is a monetary judgment with the purpose to


disgorge any benefits that convicted D received from criminal
conduct. (e.g. OSCO s.8)
- It does not target specifically at actual proceeds of crime
- Enforced as judgment debts
- Predicate offence is of course benefitted by obtaining those HKSAR v Li Kwok
proceeds of crime Cheung George
- But CO may also be made against persons subsequently
dealing with the proceeds, where they have also benefitted
from the proceeds

Principles in calculating confiscation amount: HKSAR v Lin Kei


- (1) How much the defendant “benefited” from the crime Tat
(this does not mean “profit” or “reward”, it simply means
the amount of criminal proceeds the defendant “dealt with”
and includes the value of the property or advantage obtained
by the defendant because of the criminal acts)
- (2) Amount of Defendant’s “realisable properties” i.e.
how much current assets the defendant currently own, and
calculate their total market value (irrespective of whether
those assets are related to any crime). The fact that the
Defendant’s monies / properties currently held are earned
from legitimate sources is irrelevant
- If total amount “benefited” is greater than Defendant’s
realisable properties value, the maximum confiscation
amount would be the current assets value
- If total amount “benefited” is less than Defendant’s
realisable properties value, the confiscation amount would
be the total amount benefited

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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can be made against Y although he can be otherwise sentenced for


the s.25(1) offence.

(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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