Criminal Procedure Course: Session Five

Topic Overview

• Focus on transfers, committals, and subsequent court appearances after the first appearance in magistrate's court.
• Readings from Liu, Chapter 5 (pages 289-313) and Whitford's Criminal Procedure in Hong Kong, Chapter 5.

First Appearance in Magistrate's Court

• All criminal cases in Hong Kong start in the magistrate's court.
• Prosecutor decides where the case will be dealt with if the offense is indictable (either way offense).
• Defense has no power to challenge where the case is heard.

Prosecution's Decisions

• If the case starts and finishes in magistrate's court, a plea is taken.
• Factors influencing where the case is transferred include:
  • Type of offense (summary, indictable, on indictment only).
  • Sentencing limits of the court.
  • Aggravating or mitigating factors.
  • Defendant's antecedents (previous convictions).
  • Complexity of the case.
  • Defendant's public profile.
  • Potential for enhanced sentences.

Transfers and Committals

• District Court Transfer:

  • Maximum of 7 years for indictable offenses.
  • Transfer process includes formalities like handing in transfer papers.
  • Alibi and legal aid warnings given to the defendant.

• Court of First Instance (CFI) Committal:

  • Serious cases (e.g., murder, treason) must be tried here.
  • Prosecutor fixes a return day in magistrate's court as the first step.
  • Defense can elect for a preliminary inquiry or paper committal.
  • Paper Committal: Most common, straightforward transfer.
  • Preliminary Inquiry: Rare, tests prosecution's evidence.

Preliminary Inquiry

• Defense attempts to prevent committal to CFI by challenging evidence.
• Rare due to risk of losing defense rights under Section 16.
• Evaluates whether there is sufficient evidence for trial.

Reporting Restrictions

• Restrictions on media reporting to avoid prejudice in future trials.
• Only limited details can be published (e.g., names, charges).

Section Transfers

• Section 65F: Transfer from CFI to lower courts if severity decreases.
• Section 77A: Transfer between courts depending on case seriousness.
• Section 79F: Direct transfer to CFI for cases involving child victims.
• Complex Commercial Crimes: Fast track to CFI for complex fraud cases.

This session covered the procedural aspects following the first court appearance, emphasizing the roles of prosecution and factors influencing case transfers and committals. It highlights the differences between Hong Kong's system and others, like England and Wales, and provides insight into the decision-making criteria used by prosecutors in determining the jurisdiction and handling of criminal cases.