Jurisdiction - Hong Kong
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Hong Kong – Magistrates’ Courts Proceedings.

27 June, 2014

 


The Magistrates’ Courts in Hong Kong deal with criminal cases. They also deal with summonses issued by a Magistrate as a result of information laid by the Labour Department, the Companies Registry and the Securities and Futures Commission. Corporate clients may therefore find themselves ending up in the Magistrates’ Courts. The most common summonses that Magistrates’ Courts deal with include industrial safety summonses and summonses in relation to breaches of the Companies Ordinance. This article gives a brief introduction to the procedure in Magistrates’ Courts.

 

There are seven Magistrates’ Courts in Hong Kong, located in the Eastern District, Kowloon City, Kwun Tong, Tsuen Wan, Shatin, Fanling and Tuen Mun. There are Magistrates and Special Magistrates, whose, functions are similar to District Court and High Court judges.

 

Special Magistrates and Magistrates are different in certain jurisdictional aspects. For example, a Magistrate cannot impose a fine exceeding HKD 100k, whereas a Special Magistrate cannot impose a fine exceeding HKD 50k. Although they are different in certain jurisdictional aspects, the procedure for a hearing before a Special Magistrate and a Magistrate is virtually the same.

 

A defendant will first appear in a plea court. There are two plea courts in each Magistrates’ Court. A Special Magistrate sits in one and a Magistrate in the other. The Magistrates’ plea court usually deals with more serious cases, while the Special Magistrates’ plea court usually deals with summonses which are relatively minor in nature.

 

During the plea, the charge(s) are read out and the defendant tells the court whether he pleads guilty to the charge(s). Sometimes, no plea is taken as the Department of Justice or relevant departments need time to obtain legal advice or conduct further investigation.

 

Special attention must be paid if the defendant is a corporation. A corporation must plead through a representative, meaning a person duly appointed by the corporation to represent it. The representative has to bring along a statement in writing, usually in the form of a letter, signed by a managing director of the corporation, or by any person from the corporation management, stating that the representative is duly appointed to act on behalf of the corporation to deal with the case concerned in the Magistrates’ Court. Most Magistrates also require a company chop on the letter of authorisation.

 

If a plea is taken and the defendant pleads guilty to the charge(s), pleas in mitigation will take place immediately. After mitigation, the Special Magistrate or Magistrate will deal with sentencing. The advantage of pleading guilty early, before trial, is that a defendant can usually enjoy a one-third discount in sentence e.g. where a defendant would normally be fined HKD 10k, he will only be fined HKD 7000 if he pleads guilty before trial.

 

On the other hand, if the defendant pleads not guilty, a trial date will be fixed and usually takes place two to three months later.

 

At trial, the plea will be taken again and so the defendant has another opportunity to plead guilty. If the defendant pleads guilty, he can enjoy the usual one third discount in sentence.

 

During the trial, the prosecution will call prosecution witnesses to give evidence and the defendant can cross-examine them, by asking questions relevant to the case. Usually a defendant will instruct a lawyer to attend the trial, so that cross-examination can be carried out effectively.


The prosecution closes its case after all prosecution witnesses have given evidence. The Magistrate or Special Magistrate then asks the defendant whether he wants to make a “No case to answer” submission. Generally, if there is no/insufficient evidence that the defendant committed the alleged crime, the court will stop the trial and the defendant will be discharged. Otherwise, the court will rule that there is a case to answer, in which case, the defendant may elect to give evidence and call defence witnesses. In general, a defendant has no duty to give evidence or call any defence witnesses because he is presumed innocent, until proven guilty.


After the defence case, time is given to the defendant and prosecution to make their final submissions. The Magistrate or Special Magistrate will then give his verdict and reasons for it, orally. The court can only convict the defendant if the prosecution has proven its case beyond reasonable doubt.

 

If the verdict is “not guilty”, the defendant will be discharged. An acquitted defendant may ask for costs in certain circumstances. On the other hand, if the defendant is convicted, the Magistrate or Special Magistrate will hear mitigation from the defendant and deal with sentencing accordingly.

 

If a defendant is aggrieved by the conviction or any order or determination in respect of or in connection with any offence, an appeal can be lodged to the Court of First Instance of the High Court, within prescribed time limits.

 

Further, a Magistrate or Special Magistrate may, on the application of either party within the prescribed time limit, review a determination, including a conviction. The review hearing will be heard by the same Magistrate or Special Magistrate who made the determination.

 

Unexpected things may happen during trial. Legal issues either on evidence or court procedure may arise. Further, the stance which a Special Magistrate or Magistrate takes is difficult to predict. As such, it is advisable for a defendant to be legally represented in cases before the Magistrates’ Courts so that his interests can be safeguarded.

 

Deacons

 

For further information, please contact:

 

Benny Ho, Deacons

[email protected]

 

Deacons Dispute Resolution Practice Profile in Hong Kong

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