Lect_8 Criminal Trial

8/18/2019 Lect_8 Criminal Trial

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TRAN A803BF

Hong Kong Legal System and

Legal English

Lecture 8 –

How Law is Proceed


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8.1 Criminal Trial

8.1.1 Introduction

The usual procedures to trial are as follows:

• Arrest

The police arrests a suspect.• Laying of charges

After investigation, the police may lay charge onthe suspected.

•

The police shall bring the suspect to the court fortrial. Then the suspected becomes an accused.The accused can choose to act in person or toengage a lawyer.


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8.1 Criminal Trial

• Criminal trials may take place in

--Magistrates Court,

--District Court or

--Court of First Instance .

The location of the trial is determined bythe category of offence.

However, all suspected, regardless of thecategory of offence, will initially come tothe Magistrate Court.


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8.1 Criminal Trial

• 3 categories of offence:

(a) Indictable only

--The most serious crimes, e.g. murder,

manslaughter, armed robbery, rape and

drug trafficking involving large quantities

of drugs, must be tried in the Court of First

Instance before a judge and a jury. Allthese offences carry a maximum penalty of

life imprisonment.


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8.1 Criminal Trial

--The trial of these cases may be preceded by acommittal hearing in the Magistrates Courtwhere the basic facts are tested. It is todetermine whether the matter should proceed to

the Court of First Instance for trial.--The committal seeks to establish whether theprosecution has sufficient evidence on which tobase its charge(s )and that if the matter goes totrial that there is the likelihood that the offenderwill be convicted.--After the committal, the prosecution will drawup the indictment (details of the crime charged.


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8.1 Criminal Trial

(b) Indictable or summary

Some offences, e.g. theft, burglary, assaultsand drug offences involving lesser quantities

of drugs, may be tried upon an indictment ora summons (summarily).

The decision as to whether the case will beheard by way of an indictment in the Court

of First Instance or District Court is based onthe seriousness of the offence and thelikelihood of a substantial gaol sentence.


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8.1 Criminal Trial

The maximum period of imprisonment that canbe imposed by a District Court judge is 7 years.If it is believed that the accused will and shouldreceive a longer period of imprisonment, then

the trial will take place in the Court of FirstInstance before a jury.

This is the same where the decision is made tohave a trial on indictment, in the District Court orsummarily in the Magistrates Court, where theusual maximum term of imprisonment is 2 years.In both cases, the decision is made at thediscretion of the Secretary for Justice.


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8.1 Criminal Trial

(c) Summary only

The less serious offences, e.g. careless

driving, common assault and illegal

gambling, can only proceed by way of

a summons and are tried in the

Magistrates Court.


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8.1 Criminal Trial

• Report

Before sentencing, the Court would

request for a report, e.g. probation report,

if necessary.

• Mitigation

The Court would allow the offender tomitigate.

• Sentence


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8.1 Criminal Trial

--If the plea is not guilty, a date for trial must be fixed.

• Trial

--Prosecution’ s opening

The prosecution commences by stating a case sincethe prosecution bears the responsibility ofestablishing the guilt of the accused (the onus ofproof) beyond reasonable doubt.

--Examination-in-chief of prosecution’ s witness

The prosecution calls prosecution witnesses, e.g.police officers, to give evidence in order to prove theguilt of the accused.


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8.1 Criminal Trial

--Re-examination of prosecution’ s witness

At the end of cross-examination, the prosecution mayask the witness some more questions in order to makeclarification on some obscure points.

--Submission by defence of No Case to Answer After the prosecution’ s case is complete, the defencecan apply for the case to be stopped by claiming that theprosecution has not shown that the accused has a “caseto answer ” .

The substance of this claim is that the prosecution hasnot been able to show that the accused is criminallyliable, as set out in the particulars of the summons.


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8.1 Criminal Trial

--If the Magistrate accepts the submission of nocase to answer, the accused would be acquitted.

--If the Magistrate rejects the submission, there

is a case to answer. The trial will proceed.--Opening case of Defence

The defence states his case.

The defence calls witnesses to give evidence.

As with the prosecution case, there will beexamination-in-chief, cross-examination and re-examination of the such witnesses.


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8.1 Criminal Trial

• Previous Criminal Records

The prosecution would read the previouscriminal records, if any, of the offender.

• Reports

Before sentencing, the Magistrate would requestfor a report, e.g. probation report, if necessarybefore sentencing.

• Mitigation

The Magistrate would allow the offender tomitigate before sentencing.

• Sentence


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8.1 Criminal Trial

8.1.2.2 Criminal Procedure in the DistrictCourt

• The District Court tries the indictable

offences (imprisonment for more than 2years but less than 7 years) transferredfrom the Magistrates’ Court after thecommittal hearing.

• A District Court Judge sits alone without a jury.


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8.1 Criminal Trial

• Plea-taking

--Pleaded guilty

If the plea is guilty, the prosecution wouldread the summary of facts and the details

of previous criminal records, if any.

•

Report• Mitigation

• Sentence


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8.1 Criminal Trial

--If case to answer--

>Defence’ s opening

>Examination-in-chief of Defence’ switness

>Cross-examination of Defence’ s witness

>Re-examination of Defence’ s witness

--Closing submissions


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8.1 Criminal Trial

--Verdict

>If it is not guilty, the accused would beacquitted.

>If it is found guilty, the accused would beconvicted.

--Previous criminal record, if any, and

reports--Mitigation

--Sentence


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8.1 Criminal Trial

8.1.2.3 Criminal Procedure in the Court of First

Instance (Original Jurisdiction)

• The Court of First Instance tries the indictable

cases (imprisonment for more than 7 years)transferred from the Magistrates’ Courts after the

committal proceedings.

• Cases are tried, normally in open court, by a

Judge, sitting with a jury of seven, or when a

Judge so orders, a jury of nine.


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8.1 Criminal Trial

• The Clerk of Court’ s Office will list the

case for date fixing before the Listing

Judge and will inform the parties in writing

of the date of appearing.

• At the date for fixing a hearing, the Listing

Judge will give the dates of both the pre-

trial review and the trial.


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8.1 Criminal Trial

• Pre-trial Review--A pre-trial meeting is held usually 6 weeks before trial in chambersbetween the prosecution, defence counsel and the Judge.

--At the meeting, the following matters may be settled:

>plea to be tendered by the accused,

>additional evidence from the prosecution,>admission of facts by the accused,

>witnesses to be called by the prosecution,

>objections as to the admissibility of evidence,

>any alibi to be put forward,

>submissions as to the quashing of the indictment,>severance of the accused, and

>any need for a voir dire,

--As a result of the meeting, the Judge will give such directions asnecessary to secure the proper and convenient trial of the case.


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8.1 Criminal Trial

• Trial

• Plea-taking

--Pleaded guilty

If the plea is guilty, the prosecution would readthe summary of facts and the details of previouscriminal records, if any.

• Report

• Mitigation

• Sentence


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8.1 Criminal Trial

--If pleaded not guilty,

>Voir Dire

Determine admissibility of evidence in Chamber,

if any.>Empanel Jury

>Prosecution’ s opening

>Examination-in-chief of prosecution’ s witness

>Cross-examination of prosecution’ s witness

>Re-examination of prosecution’ s witness


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8.1 Criminal Trial

--Submission by Defence of No Case to Answer

--If no case to answer —accused acquitted

--If there is case to answer —start defence

>Defence’ s opening

>Examination-in-chief of defence’ s witness

>Cross-examination of defence’ s witness

>Re-examination of defence’ s witness

--Closing submission by prosecution and

defence


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8.1 Criminal Trial

• Summing-up by JudgeThe judge will sum up the evidence for the jury,summarising the facts and highlighting thosethat are most important.

Directions will be given as to the points of lawinvolved in the case, e.g. the prosecution’ sburden of proof or what the jury may need toconsider if a defence has been raised, e.g.

provocation.The jury will then retire to a private room toconsider its verdict.


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8.1 Criminal Trial

• Jury to give verdict

In all crimes, including murder, a majority verdictof five to two will be sufficient for a conviction.

If the verdict is not guilty, the accused would beacquitted.

If the verdict is guilty, the accused is convicted.

• Previous criminal record, if any, and reports

• Mitigation• Sentence


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8.1 Criminal Trial

8.1.3 Criminal Appeals

8.1.3.1 Appeal to the Court of First Instance(Appellate Jurisdiction)

•

The Court of First Instance functions as anappeal court for criminal cases heard in theMagistrates’ Courts.

An accused who is not satisfied with the decision

of the Magistrate may lodge an appeal to theCourt of First Instance within 14 days after thedecision of the Magistrate.


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8.1 Criminal Trial

• The accused should file with theMagistrates’ Courts where the trial wasconducted. No filing fee is required.

• Upon receipt of the appeal bundle from theMagistrates’ Courts, the Clerk of Courtfixes a date for the hearing of the appeal.

A notice of hearing and a copy of theappeal bundle will be sent to the partiesconcerned.


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8.1 Criminal Trial

8.1.3.2 Appeal to the Court of Appeal

• When an accused in a criminal case tried by theDistrict Court or the Court of First Instance isconvicted and does not satisfied with thedecision, he/she may lodge an application forleave to appeal with the Court of Appeal within28 days from the day of conviction or sentence.

•

If the accused does not lodge an applicationwithin time, he/she may apply to the Court of Appeal for leave to appeal out of time.


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8.1 Criminal Trial

• An accused may appeal against his/herconviction, sentence, or both conviction andsentence by filing a Notice of Appeal setting outthe grounds of appeal within the time limit.

• The Secretary for Justice may also appealagainst a lenient sentence or use the “casestated” option where it is believed that theaccused has been wrongly acquitted.

•

an appeal against a conviction must be basedon a point of law. The Court of Appeal willgenerally not hear appeals based simply onquestions of fact.


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8.1 Criminal Trial

• The Court Clerk will send an initial appeal bundle to allparties concerned when it is ready. Further papers willbe prepared and sent to the parties concerned onrequest and upon approval by the Directions Judge or

Registrar of Appeals.• An Appeal Judge may after hearing refuse leave to

appeal or conduct “For Mention” hearings to ensure thecase is ready. When it is ready, a date will be fixed forhearing the appeal.

• After the hearing, the Court of Appeal, comprising two orthree Justices of Appeal, may dismiss or allow an appealorally and/or reserve written judgment to be handeddown or delivered on a date to be fixed.


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8.1 Criminal Trial

8.1.3.3 Appeal to the Court of Final Appeal

• An accused dissatisfied with a Court of Appeal decisionmay seek leave to appeal to the Court of Final Appeal.

• This is usually only against conviction and not sentence,

although the court has complete discretion to hear anyappeal from the Court of Appeal or from the Court ofFirst Instance in the case of a magistrate’ s appeal.

• An application for leave to appeal must be based on animportant point of law of sufficient legal significance forHKSAR. This is usually done by way of a certification bythe Court of Appeal or Court of First Instance (s32(2) ofthe Court of Final Appeal Ordinance).


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8.1 Criminal Trial

• Flowchart for Criminal Procedure

--Magistrates Court

--District Court--Court of First Instance, High Court


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8.2 Civil Trial

8.2.1 Introduction

• The procedure of civil trial in different

courts/tribunals is different.

• We would take the civil trial in the

Court of First Instance and District

Court as examples to demonstrate.


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8.2 Civil Trial

8.2.2 Civil Procedure

8.2.2.1 Civil procedure in the Court of

First Instance (Original Jurisdiction)

• The plaintiff starts a civil action against the

defendant in one of three ways:

--engage a lawyer

--seek the help of the Legal Aid Department

--start the action himself/herself


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8.2 Civil Trial

• Cartain types of individual, e.g. infants, mentally

disabled persons, estate of a deceased person,

can only commence a civil action by a

representative.• A limited company must engage a solicitor to act

on its behalf in the Court of First Instance

whether as plaintiff or defendant unless special

permission is obtained from the Court.


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8.2 Civil Trial

• Mode of starting an action

--The plaintiff can commence a civil action in theCourt of First Instance in one of the followingmodes:

>Writ of summons

>Originating summons

>Notice of originating motion or petition

--The most common mode for commencing anaction is the Writ of Summons and is outlinedbelow.


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8.2 Civil Trial

• Procedure of Civil Trial

• Writ of Summons

The plaintiff can obtain a Writ of Summons and

the accompanying Acknowledgement of Servicefrom the High Court Registry.

A Writ of Summons must always be used tocommence an action based on contract, tort,

fraud, damages for personal injuries or death,damages to property arising out of a breach ofduty.


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8.2 Civil Trial

• Filing of Writ of Summons

The plaintiff will set out on the Writ of

Summons in Chinese or English a

statement of claim, i.e. a concise

statement of the claim together with the

facts the plaintiff relies on and the relief

and remedy the plaintiff claims.


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8.2 Civil Trial

Pay a filing fee upon filing the Writ. Having paidthe fee, return the completed forms to theRegistry.

The plaintiff must serve the Writ and

Acknowledgement of Service on the defendant.This can be done by personal service, registeredmail, or insertion through the letter box. Makesure the defendant’ s address is accurate.

In an action for recovery of possession of land /property, the plaintiff must also post up a copy ofthe Writ at the entrance of the premises inquestion.


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8.2 Civil Trial

• Filing of Acknowledgement of Service bythe Defendant

When the defendant is served with the

Writ and the Acknowledgement of Service,he/she must fill in the Acknowledgement ofService to indicate if he/she wishes todefend the action and file it with theRegistry within 14 days after service of theWrit (including the day of service).


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8.2 Civil Trial

• Filing and serving of defence by the

Defendant

The defendant must file the defence with

the court and serve on the Plaintiff within

14 days after the time limit for

Acknowledgement of Servise expires. The

defence must explain why the defendant isdisputing your claim.


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8.2 Civil Trial

• Filing and serving the Counterclaim by the

defendant

The defendant may file the Counterclaim

together with the Defence if he/she/it has

claim against the plaintiff. He/She/It may

serve the Defence and Counterclaim to

the plaintiff together.


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8.2 Civil Trial

• What happens if the defendant files aDefence/Counterclaim?

The plaintiff may file with the court and serve onthe defendant a Reply to any Defence within 14days after service of the Defence, and set outadditional facts in answer to it.

If the defendant files a Counterclaim, the plaintiffwill have to file and serve a Defence to it within14 days after the service of the Counterclaim ifthe plaintiff wishes to dispute it.


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8.2 Civil Trial

The defendant can enter judgment in

default of Defence to the Counterclaim if

the plaintiff fails to do so within time. As far

as the Counterclaim is concerned, theplaintiff have become the defendant.


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8.2 Civil Trial

• Discovery of Documents

The “pleadings” , or formal statements ofclaim and defence are now complete. Next

comes “discovery

” , where each party must

disclose to the other party the documentshe/she/it possesses that relate to the case.

After disclosing the documents, both partymust allow the other party to inspect theactual documents.


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8.2 Civil Trial

• Interrogatories are written questions which

one party may require another party to

answer concerning matters at issue in an

action.

If a party has questions about the

statements made by the other party,

he/she/it may raise questions and ask theother party to answer or clarify.


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8.2 Civil Trial

• Summons for Directions (Checklist to

Master)

The plaintiff must, within one month after

pleadings are closed, issue a summons fordirections seeking the orders necessary

for the conduct of the trial.


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8.2 Civil Trial

• Listing for Trial

When a case is ready for trial, the plaintiffshould issue an inter-parte summons

returnable before the Listing Master to askfor leave to set the case down for trial.

If the Listing Master is satisfied that partiesare ready for trial, he/she will grant leaveand give directions as to the manner fortrial.


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8.2 Civil Trial

• The plaintiff should then file with the Court

an application to set a case down for trial

and a notification of setting down. When

filing the application to set down, aprescribed fee has to be paid.

Besides, the bundle of documents of the

plaintiff and defendant have to be lodged.


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8.2 Civil Trial

• Trial HearingBoth parties should attend Court punctually onthe trial date, bringing relevant originaldocuments and photocopies for the Judge and

for the other party if necessary.The witnesses should come with the parties.

At the trial, the Court will hear the evidence ofwitnesses and the submissions of the parties.

The Court may deliver judgment at the end ofthe trial or deliver/hand down the judgment at alater date.


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8.2 Civil Trial

• If the parties are willing to settle, the Court will

make the settlement an order of the Court.

If the parties settle the case amicably before the

trial, the plaintiff may file a notice to discontinuethe case, or file a notice to discontinue the case,

or file a consent order setting out the agreement.

The plaintiff may also apply to the Court at the

trial to have the terms of settlement made anorder of the Court.

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