Understanding Criminal Transfers and Committals

Hello everyone, welcome to session five of the criminal procedure course. Today's session is regarding transfers, committals and subsequent court appearances. In other words, what happens after the first appearance in the magistrate's court. The reading today is from Liu. Chapter 5, pages 289 to 313, and from Whitford Criminal Procedure in Hong Kong, Chapter 5. Okay, so we've been discussing what happens on the first appearance in the magistrate's court. We've talked about that, you know, when the defendant is brought to the court. by the police after arrest and charge or is summons to appear in the court for non-arrestable offenses so remember that all uh criminal cases in hong kong start in the magistrate's court all right they don't all finish there but they all start there for adults anyway and um it's the decision of the prosecutor here um if the offense is indictable and we've talked about what that is that means could be tried in any of the courts we sometimes call that an either way offense so um it's the prosecution's decision as to where this case will be dealt with ultimately and um the magistrates have no discretion to refuse any request so whatever the whatever the prosecution thinks about the case whether they think it's too serious for the magistrate's court or even sometimes it's going to be too serious maybe for even the district court so they have the they have the decision on that question um as far as the defense is concerned the defense may make representations as to where the case will be heard, but ultimately they have no challenge power. So if you compare that to England and Wales, where ultimately it's the other way around, ultimately the defence solicitors can decide on behalf of the defendant or the defendant himself can decide where he wishes his case to be heard. that's not the case here and um wherever the uh prosecution decides that the case is going to be dealt with that decision is not appealable in any higher court so you know it's it's you're stuck with it as the defendant now um a few things as i talked uh already um if in the magistrate's court the prosecution ever asks for a plea to be taken at any stage that means the case is going to start and finish in the magistrate's court it's very important you remember that once the plea is taken that case will be dealt with in the magistrate's court all right so if the prosecution decides on the first occasion or second occasion even later than that, if the case is still in the magistrates, that this is going to happen, then that's where it will finish. And so when the defendant pleads guilty, he'll ultimately be sentenced at some stage. If he pleads not guilty, then the trial will be fixed in the magistrates court, as I've already talked about. And if he's convicted, he will be sentenced in the magistrates court. So no other courts will be involved. All right. so the question for the question for the prosecutor is um you know when he in the early stages when it's in you know been on the first appearance in the magistrate's court is what what we're going to do with this case um are we going to keep it here in the magistrate's court are we going to send it to a different court so if you remember we looked at the uh i've referred you before to this this is um the prosecution's code And what I suggest is you download the latest version. You can find it on the DOJ website because we're going to look at it a few more times as well throughout this course. How does the prosecutor decide what to do with the case? Now right at the beginning we looked at the classification of the offences and we looked at things like whether it's a summary offence, whether it's an indictable offence, whether it's on indictment only. And you know that there are some limits to courts hearing summary only offences. It's usually the magistrate's court that hears a summary only offence, or occasionally, as I've said to you, where it's going to be transferred along with an indictable offence, then it can go through. to the district court so that's the first thing it looks at it looks at well what what kind of fence have i got here is it summary only is it indictable um and most importantly well one of the most important factors if not the by far is what's the sentencing limit of this court so if it's in the magistrate's court and it's one indictable offense then the prosecutor knows that subject to one or two exceptions, it's going to be two years limit on that offence, all right? So if he believes that this is going to be, if he's convicted the defendant, it's going to be more than two years, then obviously it's too much for the magistrate's court. In addition... It depends also on any aggravating and mitigating features in the crime. So not only does he look at the sentencing limits, the prosecutor, he also thinks, well, this is possibly two years. But when I consider the facts, this may have aggravating features, which may take it again outside the two years, right? So again, that would not... be any good in in the magistrate's court because it's the powers are going to be exceeded of sentence he also looks at any mitigating features as well so he thinks well this is the lowest level crime of this type and uh whilst the you know whilst the maximum for this crime may be quite high maybe exceeding two years actually this is right down the bottom so perhaps this crime would only attract a sentence of perhaps 12 months so as well within the magistrate's court jurisdiction um just one thing i'll be i'll be warning you on here the maximum sentence for a crime is not what the prosecutor uses to judge the crime to judge the venue because for example the maximum of theft would be 10 years okay uh But obviously, some crimes or some thefts are very minor and don't even incur a sentence of imprisonment. So don't get fooled into thinking all the time, well, let me look at the maximum sentence. The maximum sentence for theft is 10 years. Therefore, it will be committed to the court of first instance. No, that's the wrong approach. It will also consider, the prosecutor will also consider antecedents. What's the defendant's previous convictions record? Because. That can aggravate any sentence. So if a person, say, for example, has committed a crime or theft, shoplifting, for example, but they have a long history, a long history of previous offences of shoplifting, for which they may have received previous custodial sentences before, then that will aggravate the sentence. So that might push it from the magistrate's court up. to the district court sometimes. So just be aware of that. How complex is the case? Well, I mean, the magistrate's court can hear complex cases. So this isn't generally something which would make a case go to one court rather than another. But it can do. I mean, if you're talking about a case where the prosecutor is thinking about transferring it to the district court because the magistrate's court jurisdiction is too low on sentencing, then it can decide, well, this case maybe should be better dealt with on committal to the CFI. And particularly where the status of a defendant is. high profile. So whilst the district court may have jurisdiction for certain cases where the sentence is above two years, sometimes because it's a person known in the public eye, maybe like a politician or a celebrity or person well known, then that can sometimes mean that the prosecutor will ask the case to be committed. to the court of first instance rather than dealt with in the district court. You've seen that with the previous chief executive Donald Tsang who was charged with these offences a few years ago and also that corruption case with the Kwok brothers that could have gone to the district court in terms of the sentence but it didn't, it went to the court of first instance. So this is something that also the prosecutor considers. Again, if there is going to be an enhanced sentence potentially at the end of a conviction, because the sentence is an organized crime, then that can also increase the sentence. So the prosecutor must also be wary of that as well when he's thinking about the likely sentence. So that could mean that could go to a higher court on that basis. Sometimes the issue of venue is something that the prosecutor will need to take advice on. So he may consult and get advice from counsel if he's not quite sure what to do with the case. And many times on the first appearance, for example, in the magistrates, when the case is not being dealt with on that occasion because it's not ready to deal with, he may adjourn the case to seek advice on venue. So when he gets his advice on venue, and then it comes back on the second appearance in the magistrate's court for example after a couple of weeks then he will be in a position to know what to do with that case whether to whether to transfer it to the dc or to ask for the return day to be fixed for committal or to deal with it in the magistrate's court if the sentence is not going to be too high um so Let's talk about transfer then. First of all, district court, right? So the maximum, as you know, is seven years for one indictable offence, or indeed, if the district court is dealing with several indictable offences together, the maximum is still seven years. And the prosecutor may decide to transfer the case. under section 88 of the Magistrates'Ordinance to the District Court. Usually, as I've just indicated, because the prosecutor or the acting under the SJ's authorities think that this is serious and exceeds the two years maximum of the Magistrates'Court. The Magistrate power two years for one indictable offence or three years if two or more indictable offenses together, no matter how many. So let's go back to what I was just saying. Say on the first appearance the prosecutor is not entirely sure whether this is going to be in the magistrate's court or the district court. So what he does is he adjourns it on the first appearance. for advice from council on the venue and then when it comes back on the second appearance in the magistrate's court he's got it advice which says yes this should go to the district court okay so then he will transfer it on the second appearance to the district court there will not normally there will be no plea taken yet okay if he's not taking a plea in the magistrate's court because it's not going to stay there he will transfer it on the second appearance to the district court. The transfer is just a formality, right? It's normally done in writing from the prosecutor and he will hand in the transfer papers that will include the information, the date for the defendant to appear and the magistrate will sign the transfer and then In that case, the papers, the statements and all that sort of thing will then go up to the registrar at the district court. OK. On transferring, and the defendant will be in court, obviously, usually on the second appearance, the alibi warning will be given. So the magistrate will tell the defendant that if he wishes to rely on an alibi, he must give notification at least 10 days before the trial. He will give him the legal aid warning that he's entitled to apply for legal aid because... he's now going to the district court and whatever representation he's had in the magistrate's court, whether that's duty lawyer or private fees, legal aid will need to be obtained if he's going to the district court. He may have already obtained that on the transfer and it will be told what date is going to appear in the district court. So the maximum remand period, the maximum is 20 clear days. from today on the transfer to when he appears in the district court all right um if he's in custody at the moment in the magistrate's court then the date of appearance will be 21 days after this hearing so you just simply add 21. so if it's the 10th of uh let me think if it's the 10th of october in the magistrate's court today on the transfer then he will appear on the 31st of October. If he's on bail at the moment, then it doesn't really matter. So that could be a longer time between the transfer and the appearance in the district court. And at the end of the hearing in the magistrate's court, there can be an application for bail now. So... If he's currently in custody, once the transfer takes place in the magistrate's court, then it's open to the defence to make a bail application, even if he's already had two, because the transfer is considered to be a change in circumstances which would allow for a new bail application. All right. So he's either going to be transferred in custody. or he's going to be transferred on bail. Once all the transfers have been signed, everything will then be sent up to the registrar at the district court. The magistrate's jurisdiction will end under section 89 magistrate's ordinance and the district court takes over. So when the defendant appears, in the district court, which you would know the date of, we call that plea day, okay? The first appearance, if you like. And the prosecutor will be represented by government counsel or counsel on fiat with permission. And the defense will be represented either by a solicitor or counsel, independent counsel. And one sort of misnomer, actually plea day is not going to be a plea. There's no plea taken normally in the district court on the first appearance. OK, so although it's called plea day, it's just an indication of plea normally. So the prosecutor and defense will discuss plea in the district court. Is your client going to plead to this guilty or not guilty? And say the defense says, well, we think he's going to plead guilty or possibly not. We don't know for sure yet. OK, so it's an indication. We think he might. Let's say they say we think he might plead guilty to this. OK, fine. So then the court knows that or so we think he's going to plead not guilty to this. OK, so anyway, the case is then adjourned. And then normally the plea will take place next time. OK. So if the defense has given an indication that it's going to be a guilty plea on plea day, right, when it gave that notification, then the prosecutor will prepare a summary of the facts. Prosecution will prepare a summary of the facts so that when it comes back next time, the plea will be entered and the prosecution will present the facts to the court. If it's a not guilty indication, then what is going to be happening then on the next occasion is that the parties will discuss listing the matter in due course for a likely trial. So they may discuss evidence, witnesses to be called, admissibility of the interview, for example, and all those matters which appear in the textbook at Appendix 20. We call that practice direction 9.4 in the district court. All right, so all those matters you see down there, so things like how many witnesses, is counsel available for the trial, any challenges to the legal issues, any section 65b statements, any section 65c admissions which we're going to talk about later, all those matters can be discussed. Not guilty plea will be entered. And then the case would be adjourned then for either for a, at this stage, probably either for a later mention, no administrative hearing to see how the case is going so far, or a pre-trial review to set out those matters, to deal with those matters, which I've talked about under 9.4. And the question of bail will arise again at the end. Although, you know, if there's been an application for bail already in the district court and that was refused, well, perhaps there's no further application for bail. OK. At some stage, the case will be set down for a trial. That could happen on the second hearing in the district court or perhaps slightly later. Anyway. So that's what happens there on the plea date. Now, in terms of the court of first instance, just a few points, right? First of all, as I've already said, the defendant can never elect a trial in the court of first instance. That's a jury trial, right? And sometimes the only option for the prosecutor... is to invent is to in due course to commit this case to the CFI to be tried because it's a serious case it's one of those cases which must be tried in the CFI so for example murder treason rape manslaughter cannot go anywhere else they must go to the CFI but in addition to that even a case which is indictable but doesn't specify it must go to the cfi may well do so if the prosecutor thinks that this case is serious enough in other words he's examined the facts of the case he's had advice or he's had advice and if the defendant is convicted of this crime it's going to be outside the seven years for the district court okay or he thinks it's a high profile case and as discussed earlier, the public interest demands that it goes in front of the jury, for example, it's a well-known individual, then what the prosecutor is going to do eventually on these cases is to seek the defendant's committal for trial from the Magistrates Court, all right? Now, the defendant who is facing a committal to the Court of First Instance, normally can elect for a preliminary inquiry or a paper committal. Most cases go on a paper committal from the magistrate's court. So we'll look at those later. Okay, so now this is quite important, all right? So if the prosecutor decides that the case is going to be committed to the... court of first instance, right? The first stage in the magistrate's court is for the magistrate to fix the return day. So don't get confused that we don't have committal hearing yet. The first stage is the fixing of the return day. Okay. So let's say we've had the first appearance in the magistrate's court and Then we get to the second appearance in the magistrate's court. Now, it's quite possible that the prosecutor might be in a position on the second appearance in the magistrate's court. to ask for the return date to be fixed. Okay. Now, there may be a hearing which is adjourned in the magistrate's court. So it may not be exactly the second appearance. Anyway, second, third, whenever he's ready, he will ask the magistrate to fix the return date. Everybody then knows that this case is not going to be in the district court, not going to be in the magistrate's court. It's going to be committed to the court of first instance. Again, the defense has no right to challenge that. If that's what the prosecutor wishes, then so be it, right? The return day is normally fixed. If you read the rules, it's normally 10 to 42. days from the hearing date. Okay. So if it's the second appearance today or the third appearance in the magistrate's court, when he's fixing it, it's going to be between 10, 42 days ahead. In practice, it's usually 42 days, six weeks. Okay. So if today was the 1st of June, then the return day will be six weeks ahead. you can work that out yourself all right um and again the magistrate must comply with certain statements he must say certain things to the defense on appointing the return day he will tell the defense defendant through his defense of the right to legal aid on the return date so he can apply for legal aid now Because the return day or the committal day is not covered for legal aid. Okay. So if he wishes to, he should apply for that. He will also advise the defense on the fixing of the return day that he will receive or he or she will receive the committal bundle at least seven days before the return day. Okay. And he will also advise the defense. on the return day he will have the right to ask the court for a preliminary inquiry. If he's going to ask for a preliminary inquiry, the defence, he doesn't have to ask now, he only has to ask on the return day, in other words in six weeks time, all right, and if he's going to ask for the preliminary inquiry it will be on all the charges, not just one. So if he's facing five charges and he wants a preliminary inquiry on one of the charges, then there'll be a preliminary inquiry on all of them. If on the return day he decides he's not going to ask for a preliminary inquiry, then on that return day he will be committed to the court of first innocence without further inquiry. If he wants to plead guilty on the return day, then he can... do so and then he will be committed to the court of first instance for sentence. He won't be sentenced by the magistrate's court, he will be committed for sentence on the return day. He won't plead guilty on the fixing day today but if he wants to he'll be reminded on that day by the magistrate that he can plead guilty. So it's quite important that the practitioner, the solicitor reads the committal papers. looks at all the exhibits before he appears for the accused later on on the return date. You can look at the relevant sections here, Section 80 of the Magistrate's Ordinance, Section 80A, Subsection 4, Section 80B, Subsection 4. Make sure you're aware of those provisions. So. So now we've got to the return day, right? So we're still in the magistrate's court. We've had the fixing day. So we're now six weeks or so later. And what happens on the return day? So the procedure is set out in section 80C, magistrate's ordinance, and it's fairly straightforward. So here we are, we're on the return day. If the prosecutor wants to commit the defense. defendant he hands in the committal papers to the magistrate um and if the magistrate is satisfied that section 80b has been complied with he will then just give a few warnings to the defendant. So the prosecutor seeks committal of the court, he seeks committal of the defendant to the court of first instance, and the magistrate will tell the defendant if he wants to now, he can ask for a preliminary inquiry. And this is quite rare actually. Most of the time, only one or two cases where the defendant seeks a preliminary inquiry every year. Anyway, if he does, then he will tell the court that, and then the court will decide which witnesses need to be challenged, how long are we going to need for this preliminary inquiry, and then he will just adjourn the case for the preliminary inquiry. And again, at the end of that hearing, a question of bail may arise if it's likely, if he's never been granted bail, it's unlikely he's going to get bail now. The most common thing is on the return day that it goes by way of a paper committal fairly quickly. No preliminary inquiries are required. Defendant will be told that he can plead guilty if he wishes to do so and be committed for sentence. Now, if the defense is always going to plead not guilty, then he will not bother to plead guilty. It will be straightforward committal forthwith to them. the court of first instance okay if he decides he wishes to plead guilty and this could be important because if he's facing ultimately a fairly lengthy sentence it's now a requirement to get the full one-third discount that the defendant pleads guilty at the first opportunity and the first opportunity will be on the return day okay So he's got to be quite careful now. If he's going to plead guilty, he must do so. If he wants to get the full benefit, he should do so now. Because if he leaves it until he's in the court of first instance, and then he pleads guilty, then it will be reduced from the one-third discount. So it really depends on how late he pleads guilty. If he pleads guilty on the day of the trial, before the trial, then that could reduce his discount to, say, you know, 20, 25%. If he leaves it even later, then it could be 20%. You know, you see, so if someone's facing a lengthy prison sentence, then it's important that they plead guilty as soon as possible. You can look at the case of Ngo Van Nam, 2014. It's a long case, but just the basic principles of that and how the discount is reduced. Anyway. If he's going, the other thing that the magistrate would tell him is that he has a right to apply after a committal to the CFI judge for discharge. So everybody who, every defendant who does not elect a preliminary inquiry just goes by way of paper committal can ask the CFI judge to be discharged. once the transfer has occurred and I think once the indictment has been preferred. The magistrate will also give him the alibi warning, just like he did when he transfers cases to the district court, and he will also tell him that he has a right to legal aid if he hasn't already obtained it. He should have obtained it already though, because this return day is not covered by duty lawyer scheme. So if he was going to get public funding, then he should already have obtained it. The case will then be committed to the CFI. All the papers will go to the High Court Registrar, who will then list the case in due course. At the end of the hearing, it's possible to make a bail application because its committal is considered a new set of circumstances. But to be honest, it's a fairly serious case, obviously, going to the CFI and it's unlikely that the bail hearing will be application will be made at this stage. At this point the magistrate's jurisdiction ends. Okay so what is a preliminary inquiry? Okay first off I've told you that they are not that common here but if on the return day the defense has asked for a preliminary inquiry and the case has been adjourned for one What is that hearing? That hearing is in the Magistrates Court and it's basically the defence is trying to convince the magistrate not to commit. the defendant to the CFI. So the magistrate must listen to the evidence on the preliminary inquiry and he must decide is there sufficient evidence for me to put this defendant on trial in the court of first instance or does the evidence raise a strong or probable presumption of defendant's guilt. Now these are quite rare so why are they so rare? Well think about it. You're basically saying to the magistrate, there is so little evidence here, you should not even commit the defendant. So weak, it's going to be fairly weak on the evidence. And you would think that the prosecution department would not have pursued this case so far, if the evidence was so weak that the magistrate won't even commit a serious crime, because it's got to be a fairly... serious crime, hasn't it, to go to the CFI, would not have done that. So the pros, if you want a preliminary inquiry, yes, you can have one. But the pros of that are, well, you can test out the prosecution's case, you know, you can question the prosecution witnesses or the council or defense, whoever deals with it, can test the witness. the prosecution's strength of its case, can assess the credibility of the prosecution witnesses, and depending on what they say, can tactically shift the defendants, how they present the defense's case, and the prosecution witnesses will be committed to the version of events which they give. So it does have some advantage to it. But to be honest, the cons, the disadvantages are much greater really. And one of the major disadvantages, if you as a defendant elect for a preliminary inquiry, whatever happens, if you're unsuccessful at the end and the magistrate does decide to commit you, to the CFI, you've now lost the right under section 16 to ask the court of first instance judge to discharge you. You can't make that application anymore. If you on the other hand had the short form or the paper committal in the magistrate, which is by far the most common, once that case is committed you then can use your right under section 16. So basically under section 16 you are The CFI judge alone, looking at the documentation, the committal bundle, the statements from the witnesses, can decide to discharge the defendant. This is a very powerful right that the defense has. Second disadvantage, you've got to show that the evidence is so insufficient that the prosecution can't even establish a prima facie case. And that's going to be quite rare, isn't it? If the client is a private client, in other words, he's not being funded by government money, public money, then it's going to increase his costs because you've got another further hearing now. As I said earlier, you can expose the prosecution's case. But the opposite to that is that you will then expose a defense's case and strategy. So it's a double-edged sword. you know, by your questioning on the preliminary inquiry, you will now give information to the prosecution side about what the defense's case is. If you question the witnesses, the prosecution witnesses on the preliminary inquiry, they will now feel more confident when it comes to any trial. So, you know, if the defendant is committed, so these witnesses have already had one dress rehearsal giving their evidence, they will now feel a little bit more confident when they do it the second time. You will also delay the trial time because you've got another hearing, another delay that could lengthen the proceedings and put stress on the defendant obviously. And another quite important point is if you have the preliminary inquiry, even if let's assume at the end of the preliminary inquiry the magistrate decided not to commit the defendant to the court of first instance um it doesn't mean the end of the case just a very important distinction between this and discharge under section 16 by the CFI judge. That isn't equivalent to a discharge, is equivalent to that's the end of it, but not in the magistrate's court. So if you weren't committed, it's quite possible. Now, I'm not saying they would do this every time, but it's possible for the prosecution just to start all over again on the same charge, go through committal proceedings and so on. Okay. Equally, they could seek a voluntary bill. That's a direct committal to the CFI with the consent of the CFI judge to put the defender on trial without committal. They could do that after he's been discharged. Sorry, not discharged, after the magistrate has not committed him. Again, it's not something they do commonly, but it's possible. So, look, if you were successful. on your preliminary inquiry and you were not committed by the magistrate and there's never any evidence found later on against you, it is unlikely that you will then be charged again. However, it is not something that you can, you know, you perhaps want to put the defendant through because, you know, this could happen, say something like this, he's not committed. by the magistrate. The prosecution, the police, sorry, the police then go out and investigate the case further, find a little bit more evidence against the defendant and charge him again on the same offense. And then he ends up going through it all over again. So what I'm saying is if nothing is ever found and he's not committed, well, that's likely to be the end of it. But it is not the same as being discharged by the CFI judge. because that would be the end of it right and he wouldn't be charged again on the same offense in terms of advising and you know you may be dealing you may deal with this again in litigation under pcl in terms of advising a client you should only normally advise for a preliminary inquiry if they are very compelling reasons and they are very rare here um Just a couple of things. The preliminary inquiry hearing will generally not be in open court because of the risk of prejudice and the risk of information getting out in the public domain and prejudicing any future trial. If there is going to be one, then the magistrate will be advised on the return day. which witnesses are going to be there. The prosecution will advise them which witnesses they're going to have and are going to be challenged. Defence can also have their witnesses available on the preliminary inquiry to be challenged if necessary. If the defendant is successful in the preliminary inquiry, he's discharged, right? But that is not the same as the Section 16. discharge. So I put there compare section 16 of the CPO. If he's unsuccessful at the preliminary inquiry, in other words, at the end of that hearing, the magistrate does decide to commit him, which is the most likely scenario. Then he will be committed forthwith at the end of the preliminary inquiry. The magistrate will give the usual warnings, which I've already referred you to, and Again, the question of bail will arise if appropriate. Essentially, at the preliminary inquiry, the magistrate must determine whether there's enough evidence to put the defendant on trial in the CFI. So the standards he must, the test he must generally use is whether... a reasonable jury at that stage, although it's the magistrate detainment, and if it was a jury, would a reasonable jury properly directed have enough evidence to convict? Could they possibly convict the defendant at that stage? So similar to the submission of no case application, which we'll talk about when we look at trials. See section 85 of the magistrate's ordinance for any further information on that, right? And then just just just a bit about before we finish this just a little bit about committal proceedings and section 87 a of the magistrate's ordinance now I keep stressing this Before a trial is to take place, there must generally be a limit as to what gets out into the public about the facts or evidence about the case in order not to prejudice any future trial, right? Because if the case is going for a jury trial, who knows who's going to be reading the newspapers in the time leading up to that trial? They could end up... being on the jury and and information in that court reporting in the say for example in the south china morning post could prejudice could because somebody reading that might might form a view before the trial as to guilt or innocence based on the newspaper reports you know you know you may be surprised but that that will happen and so the court restricts information which is to be reported about a case if it's going you know well any time but it particularly I'm talking now about if the case is going to be committed on committal proceedings which is on the return day if the case is going to be committed to the CFI so so the reporters whether that's news television newspapers are restricted under 87 a subsection 7 as to what information they can publish. So they can publish the name of a defendant, they can publish the address of the parties, the type of offence, the name of the offence, or the section of the offence charged, names and the details of the solicitor, and the decision reached by the magistrate's court and the magistrate's name, and that's about it really. If the defence wishes those restrictions to be lifted, and it's only the defence that can lift those and can apply to have those lifted, why would it do that? Well, in order to possibly have information out there, which will give a bit more information about the case and perhaps hopefully that somebody will come forward as a witness to give a statement to the solicitor to assist the defendant, something like that. If it's not that, if there's no application to lift the restrictions, then those who are journalists or publishers must be very careful, TV stations must be very careful about what they publish about the case. And if they are publishing more than the limited information allowed, they could find themselves in trouble, could find themselves in contempt of court. could end up facing financial penalties or even imprisonment. These restrictions or limits on reporting are strictly enforced by the courts, as I've said, to prevent prejudice to any future trial of the defendant. Just a couple of points. Now, I've been talking about transferring from the Magistrates Court to the District Court and committing cases to the Court of First Instance. There are some provisions which allow transfers even once the case has transferred or been committed. So section 65F, this is where the case has been committed to the court of first instance. And if the case then becomes perhaps less serious, maybe one of the charges has been dropped after committal, for example, there is a power, only in the power of the Secretary for Justice, to apply by notice of motion and affirmation or affidavit to transfer the case on notice to the defense back down to the district court, or it has become much less serious from the CFI, even back down to the magistrate's court. So you know circumstances have changed in the case it's no longer going to be in the cfi application by the secretary for justice on motion with an affidavit transfer it back down to one of those courts Notice must be given to the defence 21 days before this hearing of transfer. Similarly, the case was transferred to the District Court from the Magistrates Court under section 77A. On the application of the Secretary for Justice, the case can be transferred from the District Court. Now it's become more serious, for example. The case has become more serious. worse, so that the prosecution thinks, well, this might be more than seven years now. So we'd better transfer it, get it transferred up to the court of first instance. Or if it's become less serious, let's get it transferred back down to the magistrate's court. So this is under section 77A of the district court ordinance. 65F of the criminal procedure ordinance was the first one. This is 77A of the district court ordinance. So the district judge will transfer it to the CFI or back down to the magistrate's court. Under 79F, this is a case which involves sexual abuse or cruelty or violence to a child. Okay. These cases, as you can imagine, are rather traumatic for the victims. And so what this power is, it's a power to transfer the case. Remember, I've told you that all cases start in the Magistrates Court. to transfer this case straight to the Court of First Instance without going through any committal proceedings. So there's no appointment day, there's no return day, the defendant is simply transferred straight from the Magistrates Court up to the Court of First Instance. It's really to avoid stress, upset to the victim, the young person, the child, or who's facing that kind of thing. They won't have to go through that. And the last one, remind yourself of section three of the complex commercial crimes ordinance. So what we've got here is a case in the magistrate's court which involves fairly detailed and complex commercial crime, a complex fraud. I don't mean something simple like, I don't know. Obtaining property by deception, I mean a complex fraud case, maybe involving thousands and thousands of documents. I don't know, let's talk about something like false accounting of a company or defrauding a company of millions. This case is considered a complex commercial crime. It's too complex to have committal proceedings. Let's just transfer it straight from the magistrate's court to the court of first instance. We call this fast tracking. Only under that section right fast tracking. So all other cases the defender will be entitled to Committal proceedings, you know return day but not in these exceptional cases. Okay Right. Um, so that's the end of this section. So I'll stop the video now

The reading today is from Liu. Chapter 5, pages 289 to 313, and from Whitford Criminal Procedure in Hong Kong, Chapter 5. Okay, so we've been discussing what happens on the first appearance in the magistrate's court. We've talked about that, you know, when the defendant is brought to the court. by the police after arrest and charge or is summons to appear in the court for non-arrestable offenses so remember that all uh criminal cases in hong kong start in the magistrate's court all right they don't all finish there but they all start there for adults anyway and um it's the decision of the prosecutor here um if the offense is indictable and we've talked about what that is that means could be tried in any of the courts we sometimes call that an either way offense so um it's the prosecution's decision as to where this case will be dealt with ultimately and um the magistrates have no discretion to refuse any request so whatever the whatever the prosecution thinks about the case whether they think it's too serious for the magistrate's court or even sometimes it's going to be too serious maybe for even the district court so they have the they have the decision on that question um as far as the defense is concerned the defense may make representations as to where the case will be heard, but ultimately they have no challenge power.

So if you compare that to England and Wales, where ultimately it's the other way around, ultimately the defence solicitors can decide on behalf of the defendant or the defendant himself can decide where he wishes his case to be heard. that's not the case here and um wherever the uh prosecution decides that the case is going to be dealt with that decision is not appealable in any higher court so you know it's it's you're stuck with it as the defendant now um a few things as i talked uh already um if in the magistrate's court the prosecution ever asks for a plea to be taken at any stage that means the case is going to start and finish in the magistrate's court it's very important you remember that once the plea is taken that case will be dealt with in the magistrate's court all right so if the prosecution decides on the first occasion or second occasion even later than that, if the case is still in the magistrates, that this is going to happen, then that's where it will finish. And so when the defendant pleads guilty, he'll ultimately be sentenced at some stage.

If he pleads not guilty, then the trial will be fixed in the magistrates court, as I've already talked about. And if he's convicted, he will be sentenced in the magistrates court. So no other courts will be involved.

All right. so the question for the question for the prosecutor is um you know when he in the early stages when it's in you know been on the first appearance in the magistrate's court is what what we're going to do with this case um are we going to keep it here in the magistrate's court are we going to send it to a different court so if you remember we looked at the uh i've referred you before to this this is um the prosecution's code And what I suggest is you download the latest version. You can find it on the DOJ website because we're going to look at it a few more times as well throughout this course. How does the prosecutor decide what to do with the case?

Now right at the beginning we looked at the classification of the offences and we looked at things like whether it's a summary offence, whether it's an indictable offence, whether it's on indictment only. And you know that there are some limits to courts hearing summary only offences. It's usually the magistrate's court that hears a summary only offence, or occasionally, as I've said to you, where it's going to be transferred along with an indictable offence, then it can go through.

to the district court so that's the first thing it looks at it looks at well what what kind of fence have i got here is it summary only is it indictable um and most importantly well one of the most important factors if not the by far is what's the sentencing limit of this court so if it's in the magistrate's court and it's one indictable offense then the prosecutor knows that subject to one or two exceptions, it's going to be two years limit on that offence, all right? So if he believes that this is going to be, if he's convicted the defendant, it's going to be more than two years, then obviously it's too much for the magistrate's court. In addition...

It depends also on any aggravating and mitigating features in the crime. So not only does he look at the sentencing limits, the prosecutor, he also thinks, well, this is possibly two years. But when I consider the facts, this may have aggravating features, which may take it again outside the two years, right? So again, that would not...

be any good in in the magistrate's court because it's the powers are going to be exceeded of sentence he also looks at any mitigating features as well so he thinks well this is the lowest level crime of this type and uh whilst the you know whilst the maximum for this crime may be quite high maybe exceeding two years actually this is right down the bottom so perhaps this crime would only attract a sentence of perhaps 12 months so as well within the magistrate's court jurisdiction um just one thing i'll be i'll be warning you on here the maximum sentence for a crime is not what the prosecutor uses to judge the crime to judge the venue because for example the maximum of theft would be 10 years okay uh But obviously, some crimes or some thefts are very minor and don't even incur a sentence of imprisonment. So don't get fooled into thinking all the time, well, let me look at the maximum sentence. The maximum sentence for theft is 10 years.

Therefore, it will be committed to the court of first instance. No, that's the wrong approach. It will also consider, the prosecutor will also consider antecedents. What's the defendant's previous convictions record? Because.

That can aggravate any sentence. So if a person, say, for example, has committed a crime or theft, shoplifting, for example, but they have a long history, a long history of previous offences of shoplifting, for which they may have received previous custodial sentences before, then that will aggravate the sentence. So that might push it from the magistrate's court up.

to the district court sometimes. So just be aware of that. How complex is the case?

Well, I mean, the magistrate's court can hear complex cases. So this isn't generally something which would make a case go to one court rather than another. But it can do.

I mean, if you're talking about a case where the prosecutor is thinking about transferring it to the district court because the magistrate's court jurisdiction is too low on sentencing, then it can decide, well, this case maybe should be better dealt with on committal to the CFI. And particularly where the status of a defendant is. high profile. So whilst the district court may have jurisdiction for certain cases where the sentence is above two years, sometimes because it's a person known in the public eye, maybe like a politician or a celebrity or person well known, then that can sometimes mean that the prosecutor will ask the case to be committed.

to the court of first instance rather than dealt with in the district court. You've seen that with the previous chief executive Donald Tsang who was charged with these offences a few years ago and also that corruption case with the Kwok brothers that could have gone to the district court in terms of the sentence but it didn't, it went to the court of first instance. So this is something that also the prosecutor considers.

Again, if there is going to be an enhanced sentence potentially at the end of a conviction, because the sentence is an organized crime, then that can also increase the sentence. So the prosecutor must also be wary of that as well when he's thinking about the likely sentence. So that could mean that could go to a higher court on that basis. Sometimes the issue of venue is something that the prosecutor will need to take advice on.

So he may consult and get advice from counsel if he's not quite sure what to do with the case. And many times on the first appearance, for example, in the magistrates, when the case is not being dealt with on that occasion because it's not ready to deal with, he may adjourn the case to seek advice on venue. So when he gets his advice on venue, and then it comes back on the second appearance in the magistrate's court for example after a couple of weeks then he will be in a position to know what to do with that case whether to whether to transfer it to the dc or to ask for the return day to be fixed for committal or to deal with it in the magistrate's court if the sentence is not going to be too high um so Let's talk about transfer then.

First of all, district court, right? So the maximum, as you know, is seven years for one indictable offence, or indeed, if the district court is dealing with several indictable offences together, the maximum is still seven years. And the prosecutor may decide to transfer the case. under section 88 of the Magistrates'Ordinance to the District Court. Usually, as I've just indicated, because the prosecutor or the acting under the SJ's authorities think that this is serious and exceeds the two years maximum of the Magistrates'Court.

The Magistrate power two years for one indictable offence or three years if two or more indictable offenses together, no matter how many. So let's go back to what I was just saying. Say on the first appearance the prosecutor is not entirely sure whether this is going to be in the magistrate's court or the district court.

So what he does is he adjourns it on the first appearance. for advice from council on the venue and then when it comes back on the second appearance in the magistrate's court he's got it advice which says yes this should go to the district court okay so then he will transfer it on the second appearance to the district court there will not normally there will be no plea taken yet okay if he's not taking a plea in the magistrate's court because it's not going to stay there he will transfer it on the second appearance to the district court. The transfer is just a formality, right?

It's normally done in writing from the prosecutor and he will hand in the transfer papers that will include the information, the date for the defendant to appear and the magistrate will sign the transfer and then In that case, the papers, the statements and all that sort of thing will then go up to the registrar at the district court. OK. On transferring, and the defendant will be in court, obviously, usually on the second appearance, the alibi warning will be given.

So the magistrate will tell the defendant that if he wishes to rely on an alibi, he must give notification at least 10 days before the trial. He will give him the legal aid warning that he's entitled to apply for legal aid because... he's now going to the district court and whatever representation he's had in the magistrate's court, whether that's duty lawyer or private fees, legal aid will need to be obtained if he's going to the district court.

He may have already obtained that on the transfer and it will be told what date is going to appear in the district court. So the maximum remand period, the maximum is 20 clear days. from today on the transfer to when he appears in the district court all right um if he's in custody at the moment in the magistrate's court then the date of appearance will be 21 days after this hearing so you just simply add 21. so if it's the 10th of uh let me think if it's the 10th of october in the magistrate's court today on the transfer then he will appear on the 31st of October.

If he's on bail at the moment, then it doesn't really matter. So that could be a longer time between the transfer and the appearance in the district court. And at the end of the hearing in the magistrate's court, there can be an application for bail now.

So... If he's currently in custody, once the transfer takes place in the magistrate's court, then it's open to the defence to make a bail application, even if he's already had two, because the transfer is considered to be a change in circumstances which would allow for a new bail application. All right. So he's either going to be transferred in custody.

or he's going to be transferred on bail. Once all the transfers have been signed, everything will then be sent up to the registrar at the district court. The magistrate's jurisdiction will end under section 89 magistrate's ordinance and the district court takes over.

So when the defendant appears, in the district court, which you would know the date of, we call that plea day, okay? The first appearance, if you like. And the prosecutor will be represented by government counsel or counsel on fiat with permission.

And the defense will be represented either by a solicitor or counsel, independent counsel. And one sort of misnomer, actually plea day is not going to be a plea. There's no plea taken normally in the district court on the first appearance. OK, so although it's called plea day, it's just an indication of plea normally. So the prosecutor and defense will discuss plea in the district court.

Is your client going to plead to this guilty or not guilty? And say the defense says, well, we think he's going to plead guilty or possibly not. We don't know for sure yet. OK, so it's an indication. We think he might.

Let's say they say we think he might plead guilty to this. OK, fine. So then the court knows that or so we think he's going to plead not guilty to this.

OK, so anyway, the case is then adjourned. And then normally the plea will take place next time. OK. So if the defense has given an indication that it's going to be a guilty plea on plea day, right, when it gave that notification, then the prosecutor will prepare a summary of the facts.

Prosecution will prepare a summary of the facts so that when it comes back next time, the plea will be entered and the prosecution will present the facts to the court. If it's a not guilty indication, then what is going to be happening then on the next occasion is that the parties will discuss listing the matter in due course for a likely trial. So they may discuss evidence, witnesses to be called, admissibility of the interview, for example, and all those matters which appear in the textbook at Appendix 20. We call that practice direction 9.4 in the district court.

All right, so all those matters you see down there, so things like how many witnesses, is counsel available for the trial, any challenges to the legal issues, any section 65b statements, any section 65c admissions which we're going to talk about later, all those matters can be discussed. Not guilty plea will be entered. And then the case would be adjourned then for either for a, at this stage, probably either for a later mention, no administrative hearing to see how the case is going so far, or a pre-trial review to set out those matters, to deal with those matters, which I've talked about under 9.4.

And the question of bail will arise again at the end. Although, you know, if there's been an application for bail already in the district court and that was refused, well, perhaps there's no further application for bail. OK. At some stage, the case will be set down for a trial. That could happen on the second hearing in the district court or perhaps slightly later.

Anyway. So that's what happens there on the plea date. Now, in terms of the court of first instance, just a few points, right? First of all, as I've already said, the defendant can never elect a trial in the court of first instance.

That's a jury trial, right? And sometimes the only option for the prosecutor... is to invent is to in due course to commit this case to the CFI to be tried because it's a serious case it's one of those cases which must be tried in the CFI so for example murder treason rape manslaughter cannot go anywhere else they must go to the CFI but in addition to that even a case which is indictable but doesn't specify it must go to the cfi may well do so if the prosecutor thinks that this case is serious enough in other words he's examined the facts of the case he's had advice or he's had advice and if the defendant is convicted of this crime it's going to be outside the seven years for the district court okay or he thinks it's a high profile case and as discussed earlier, the public interest demands that it goes in front of the jury, for example, it's a well-known individual, then what the prosecutor is going to do eventually on these cases is to seek the defendant's committal for trial from the Magistrates Court, all right?

Now, the defendant who is facing a committal to the Court of First Instance, normally can elect for a preliminary inquiry or a paper committal. Most cases go on a paper committal from the magistrate's court. So we'll look at those later. Okay, so now this is quite important, all right?

So if the prosecutor decides that the case is going to be committed to the... court of first instance, right? The first stage in the magistrate's court is for the magistrate to fix the return day. So don't get confused that we don't have committal hearing yet.

The first stage is the fixing of the return day. Okay. So let's say we've had the first appearance in the magistrate's court and Then we get to the second appearance in the magistrate's court. Now, it's quite possible that the prosecutor might be in a position on the second appearance in the magistrate's court. to ask for the return date to be fixed.

Okay. Now, there may be a hearing which is adjourned in the magistrate's court. So it may not be exactly the second appearance. Anyway, second, third, whenever he's ready, he will ask the magistrate to fix the return date.

Everybody then knows that this case is not going to be in the district court, not going to be in the magistrate's court. It's going to be committed to the court of first instance. Again, the defense has no right to challenge that.

If that's what the prosecutor wishes, then so be it, right? The return day is normally fixed. If you read the rules, it's normally 10 to 42. days from the hearing date.

Okay. So if it's the second appearance today or the third appearance in the magistrate's court, when he's fixing it, it's going to be between 10, 42 days ahead. In practice, it's usually 42 days, six weeks. Okay. So if today was the 1st of June, then the return day will be six weeks ahead.

you can work that out yourself all right um and again the magistrate must comply with certain statements he must say certain things to the defense on appointing the return day he will tell the defense defendant through his defense of the right to legal aid on the return date so he can apply for legal aid now Because the return day or the committal day is not covered for legal aid. Okay. So if he wishes to, he should apply for that.

He will also advise the defense on the fixing of the return day that he will receive or he or she will receive the committal bundle at least seven days before the return day. Okay. And he will also advise the defense.

on the return day he will have the right to ask the court for a preliminary inquiry. If he's going to ask for a preliminary inquiry, the defence, he doesn't have to ask now, he only has to ask on the return day, in other words in six weeks time, all right, and if he's going to ask for the preliminary inquiry it will be on all the charges, not just one. So if he's facing five charges and he wants a preliminary inquiry on one of the charges, then there'll be a preliminary inquiry on all of them. If on the return day he decides he's not going to ask for a preliminary inquiry, then on that return day he will be committed to the court of first innocence without further inquiry. If he wants to plead guilty on the return day, then he can...

do so and then he will be committed to the court of first instance for sentence. He won't be sentenced by the magistrate's court, he will be committed for sentence on the return day. He won't plead guilty on the fixing day today but if he wants to he'll be reminded on that day by the magistrate that he can plead guilty. So it's quite important that the practitioner, the solicitor reads the committal papers.

looks at all the exhibits before he appears for the accused later on on the return date. You can look at the relevant sections here, Section 80 of the Magistrate's Ordinance, Section 80A, Subsection 4, Section 80B, Subsection 4. Make sure you're aware of those provisions. So. So now we've got to the return day, right?

So we're still in the magistrate's court. We've had the fixing day. So we're now six weeks or so later.

And what happens on the return day? So the procedure is set out in section 80C, magistrate's ordinance, and it's fairly straightforward. So here we are, we're on the return day.

If the prosecutor wants to commit the defense. defendant he hands in the committal papers to the magistrate um and if the magistrate is satisfied that section 80b has been complied with he will then just give a few warnings to the defendant. So the prosecutor seeks committal of the court, he seeks committal of the defendant to the court of first instance, and the magistrate will tell the defendant if he wants to now, he can ask for a preliminary inquiry.

And this is quite rare actually. Most of the time, only one or two cases where the defendant seeks a preliminary inquiry every year. Anyway, if he does, then he will tell the court that, and then the court will decide which witnesses need to be challenged, how long are we going to need for this preliminary inquiry, and then he will just adjourn the case for the preliminary inquiry. And again, at the end of that hearing, a question of bail may arise if it's likely, if he's never been granted bail, it's unlikely he's going to get bail now.

The most common thing is on the return day that it goes by way of a paper committal fairly quickly. No preliminary inquiries are required. Defendant will be told that he can plead guilty if he wishes to do so and be committed for sentence.

Now, if the defense is always going to plead not guilty, then he will not bother to plead guilty. It will be straightforward committal forthwith to them. the court of first instance okay if he decides he wishes to plead guilty and this could be important because if he's facing ultimately a fairly lengthy sentence it's now a requirement to get the full one-third discount that the defendant pleads guilty at the first opportunity and the first opportunity will be on the return day okay So he's got to be quite careful now.

If he's going to plead guilty, he must do so. If he wants to get the full benefit, he should do so now. Because if he leaves it until he's in the court of first instance, and then he pleads guilty, then it will be reduced from the one-third discount. So it really depends on how late he pleads guilty. If he pleads guilty on the day of the trial, before the trial, then that could reduce his discount to, say, you know, 20, 25%.

If he leaves it even later, then it could be 20%. You know, you see, so if someone's facing a lengthy prison sentence, then it's important that they plead guilty as soon as possible. You can look at the case of Ngo Van Nam, 2014. It's a long case, but just the basic principles of that and how the discount is reduced. Anyway.

If he's going, the other thing that the magistrate would tell him is that he has a right to apply after a committal to the CFI judge for discharge. So everybody who, every defendant who does not elect a preliminary inquiry just goes by way of paper committal can ask the CFI judge to be discharged. once the transfer has occurred and I think once the indictment has been preferred.

The magistrate will also give him the alibi warning, just like he did when he transfers cases to the district court, and he will also tell him that he has a right to legal aid if he hasn't already obtained it. He should have obtained it already though, because this return day is not covered by duty lawyer scheme. So if he was going to get public funding, then he should already have obtained it.

The case will then be committed to the CFI. All the papers will go to the High Court Registrar, who will then list the case in due course. At the end of the hearing, it's possible to make a bail application because its committal is considered a new set of circumstances. But to be honest, it's a fairly serious case, obviously, going to the CFI and it's unlikely that the bail hearing will be application will be made at this stage. At this point the magistrate's jurisdiction ends.

Okay so what is a preliminary inquiry? Okay first off I've told you that they are not that common here but if on the return day the defense has asked for a preliminary inquiry and the case has been adjourned for one What is that hearing? That hearing is in the Magistrates Court and it's basically the defence is trying to convince the magistrate not to commit.

the defendant to the CFI. So the magistrate must listen to the evidence on the preliminary inquiry and he must decide is there sufficient evidence for me to put this defendant on trial in the court of first instance or does the evidence raise a strong or probable presumption of defendant's guilt. Now these are quite rare so why are they so rare?

Well think about it. You're basically saying to the magistrate, there is so little evidence here, you should not even commit the defendant. So weak, it's going to be fairly weak on the evidence. And you would think that the prosecution department would not have pursued this case so far, if the evidence was so weak that the magistrate won't even commit a serious crime, because it's got to be a fairly... serious crime, hasn't it, to go to the CFI, would not have done that.

So the pros, if you want a preliminary inquiry, yes, you can have one. But the pros of that are, well, you can test out the prosecution's case, you know, you can question the prosecution witnesses or the council or defense, whoever deals with it, can test the witness. the prosecution's strength of its case, can assess the credibility of the prosecution witnesses, and depending on what they say, can tactically shift the defendants, how they present the defense's case, and the prosecution witnesses will be committed to the version of events which they give.

So it does have some advantage to it. But to be honest, the cons, the disadvantages are much greater really. And one of the major disadvantages, if you as a defendant elect for a preliminary inquiry, whatever happens, if you're unsuccessful at the end and the magistrate does decide to commit you, to the CFI, you've now lost the right under section 16 to ask the court of first instance judge to discharge you.

You can't make that application anymore. If you on the other hand had the short form or the paper committal in the magistrate, which is by far the most common, once that case is committed you then can use your right under section 16. So basically under section 16 you are The CFI judge alone, looking at the documentation, the committal bundle, the statements from the witnesses, can decide to discharge the defendant. This is a very powerful right that the defense has.

Second disadvantage, you've got to show that the evidence is so insufficient that the prosecution can't even establish a prima facie case. And that's going to be quite rare, isn't it? If the client is a private client, in other words, he's not being funded by government money, public money, then it's going to increase his costs because you've got another further hearing now. As I said earlier, you can expose the prosecution's case. But the opposite to that is that you will then expose a defense's case and strategy.

So it's a double-edged sword. you know, by your questioning on the preliminary inquiry, you will now give information to the prosecution side about what the defense's case is. If you question the witnesses, the prosecution witnesses on the preliminary inquiry, they will now feel more confident when it comes to any trial.

So, you know, if the defendant is committed, so these witnesses have already had one dress rehearsal giving their evidence, they will now feel a little bit more confident when they do it the second time. You will also delay the trial time because you've got another hearing, another delay that could lengthen the proceedings and put stress on the defendant obviously. And another quite important point is if you have the preliminary inquiry, even if let's assume at the end of the preliminary inquiry the magistrate decided not to commit the defendant to the court of first instance um it doesn't mean the end of the case just a very important distinction between this and discharge under section 16 by the CFI judge.

That isn't equivalent to a discharge, is equivalent to that's the end of it, but not in the magistrate's court. So if you weren't committed, it's quite possible. Now, I'm not saying they would do this every time, but it's possible for the prosecution just to start all over again on the same charge, go through committal proceedings and so on. Okay.

Equally, they could seek a voluntary bill. That's a direct committal to the CFI with the consent of the CFI judge to put the defender on trial without committal. They could do that after he's been discharged. Sorry, not discharged, after the magistrate has not committed him.

Again, it's not something they do commonly, but it's possible. So, look, if you were successful. on your preliminary inquiry and you were not committed by the magistrate and there's never any evidence found later on against you, it is unlikely that you will then be charged again.

However, it is not something that you can, you know, you perhaps want to put the defendant through because, you know, this could happen, say something like this, he's not committed. by the magistrate. The prosecution, the police, sorry, the police then go out and investigate the case further, find a little bit more evidence against the defendant and charge him again on the same offense. And then he ends up going through it all over again. So what I'm saying is if nothing is ever found and he's not committed, well, that's likely to be the end of it.

But it is not the same as being discharged by the CFI judge. because that would be the end of it right and he wouldn't be charged again on the same offense in terms of advising and you know you may be dealing you may deal with this again in litigation under pcl in terms of advising a client you should only normally advise for a preliminary inquiry if they are very compelling reasons and they are very rare here um Just a couple of things. The preliminary inquiry hearing will generally not be in open court because of the risk of prejudice and the risk of information getting out in the public domain and prejudicing any future trial. If there is going to be one, then the magistrate will be advised on the return day.

which witnesses are going to be there. The prosecution will advise them which witnesses they're going to have and are going to be challenged. Defence can also have their witnesses available on the preliminary inquiry to be challenged if necessary.

If the defendant is successful in the preliminary inquiry, he's discharged, right? But that is not the same as the Section 16. discharge. So I put there compare section 16 of the CPO.

If he's unsuccessful at the preliminary inquiry, in other words, at the end of that hearing, the magistrate does decide to commit him, which is the most likely scenario. Then he will be committed forthwith at the end of the preliminary inquiry. The magistrate will give the usual warnings, which I've already referred you to, and Again, the question of bail will arise if appropriate.

Essentially, at the preliminary inquiry, the magistrate must determine whether there's enough evidence to put the defendant on trial in the CFI. So the standards he must, the test he must generally use is whether... a reasonable jury at that stage, although it's the magistrate detainment, and if it was a jury, would a reasonable jury properly directed have enough evidence to convict?

Could they possibly convict the defendant at that stage? So similar to the submission of no case application, which we'll talk about when we look at trials. See section 85 of the magistrate's ordinance for any further information on that, right? And then just just just a bit about before we finish this just a little bit about committal proceedings and section 87 a of the magistrate's ordinance now I keep stressing this Before a trial is to take place, there must generally be a limit as to what gets out into the public about the facts or evidence about the case in order not to prejudice any future trial, right?

Because if the case is going for a jury trial, who knows who's going to be reading the newspapers in the time leading up to that trial? They could end up... being on the jury and and information in that court reporting in the say for example in the south china morning post could prejudice could because somebody reading that might might form a view before the trial as to guilt or innocence based on the newspaper reports you know you know you may be surprised but that that will happen and so the court restricts information which is to be reported about a case if it's going you know well any time but it particularly I'm talking now about if the case is going to be committed on committal proceedings which is on the return day if the case is going to be committed to the CFI so so the reporters whether that's news television newspapers are restricted under 87 a subsection 7 as to what information they can publish. So they can publish the name of a defendant, they can publish the address of the parties, the type of offence, the name of the offence, or the section of the offence charged, names and the details of the solicitor, and the decision reached by the magistrate's court and the magistrate's name, and that's about it really.

If the defence wishes those restrictions to be lifted, and it's only the defence that can lift those and can apply to have those lifted, why would it do that? Well, in order to possibly have information out there, which will give a bit more information about the case and perhaps hopefully that somebody will come forward as a witness to give a statement to the solicitor to assist the defendant, something like that. If it's not that, if there's no application to lift the restrictions, then those who are journalists or publishers must be very careful, TV stations must be very careful about what they publish about the case. And if they are publishing more than the limited information allowed, they could find themselves in trouble, could find themselves in contempt of court.

could end up facing financial penalties or even imprisonment. These restrictions or limits on reporting are strictly enforced by the courts, as I've said, to prevent prejudice to any future trial of the defendant. Just a couple of points. Now, I've been talking about transferring from the Magistrates Court to the District Court and committing cases to the Court of First Instance. There are some provisions which allow transfers even once the case has transferred or been committed.

So section 65F, this is where the case has been committed to the court of first instance. And if the case then becomes perhaps less serious, maybe one of the charges has been dropped after committal, for example, there is a power, only in the power of the Secretary for Justice, to apply by notice of motion and affirmation or affidavit to transfer the case on notice to the defense back down to the district court, or it has become much less serious from the CFI, even back down to the magistrate's court. So you know circumstances have changed in the case it's no longer going to be in the cfi application by the secretary for justice on motion with an affidavit transfer it back down to one of those courts Notice must be given to the defence 21 days before this hearing of transfer.

Similarly, the case was transferred to the District Court from the Magistrates Court under section 77A. On the application of the Secretary for Justice, the case can be transferred from the District Court. Now it's become more serious, for example.

The case has become more serious. worse, so that the prosecution thinks, well, this might be more than seven years now. So we'd better transfer it, get it transferred up to the court of first instance. Or if it's become less serious, let's get it transferred back down to the magistrate's court. So this is under section 77A of the district court ordinance.

65F of the criminal procedure ordinance was the first one. This is 77A of the district court ordinance. So the district judge will transfer it to the CFI or back down to the magistrate's court.

Under 79F, this is a case which involves sexual abuse or cruelty or violence to a child. Okay. These cases, as you can imagine, are rather traumatic for the victims.

And so what this power is, it's a power to transfer the case. Remember, I've told you that all cases start in the Magistrates Court. to transfer this case straight to the Court of First Instance without going through any committal proceedings. So there's no appointment day, there's no return day, the defendant is simply transferred straight from the Magistrates Court up to the Court of First Instance.

It's really to avoid stress, upset to the victim, the young person, the child, or who's facing that kind of thing. They won't have to go through that. And the last one, remind yourself of section three of the complex commercial crimes ordinance.

So what we've got here is a case in the magistrate's court which involves fairly detailed and complex commercial crime, a complex fraud. I don't mean something simple like, I don't know. Obtaining property by deception, I mean a complex fraud case, maybe involving thousands and thousands of documents.

I don't know, let's talk about something like false accounting of a company or defrauding a company of millions. This case is considered a complex commercial crime. It's too complex to have committal proceedings. Let's just transfer it straight from the magistrate's court to the court of first instance. We call this fast tracking.

Only under that section right fast tracking. So all other cases the defender will be entitled to Committal proceedings, you know return day but not in these exceptional cases. Okay Right. Um, so that's the end of this section. So I'll stop the video now

Transcript for:Understanding Criminal Transfers and Committals

Transcript for:
Understanding Criminal Transfers and Committals