General information on criminal law in Hong Kong based on publications by the Hong Kong Department of Justice.
The Secretary for Justice has overall responsibility for the conduct of prosecutions in Hong Kong. It is for the Secretary and those who prosecute on the Secretary's behalf to decide whether or not a prosecution should be instituted in any particular case or class of cases.
In prosecutions for serious or complicated offences, or those which give rise to difficult points of law, police officers and other law enforcement agents will seek the advice of the Secretary for Justice or of counsel in the Prosecutions Division of the Department of Justice. In determining whether or not to prosecute, the Secretary for Justice considers two issues: first, is the evidence sufficient to justify the institution of proceedings? Second, if it is, does the public interest require a prosecution to take place? In making that decision the Secretary for Justice is not subject to any instructions or directions from the executive.
In practice, many prosecutions at the summary level involve simple cases which are processed by the Police or other investigative bodies and do not require the specific involvement of the Secretary for Justice. At the same time, all such cases are scrutinised at the Magistrates' Courts by Senior Court Prosecutors acting on behalf of the Secretary.
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The jury system
The most serious criminal offences, such as murder, manslaughter, rape, armed robbery and certain drug offences, are tried by a judge of the Court of First Instance, sitting with a jury of seven people or, where a judge so orders, nine. It is the jury which decides whether the accused is guilty or not guilty. A judge will urge a jury to strive for unanimity in reaching their verdict, but a jury may return a majority verdict of five to two or seven to two.
The purpose of a death inquest is to establish the identity of a deceased person and the cause of and circumstances connected with the death. In certain defined cases, an inquest must be held with a jury. In these cases, and in any other case in which the Coroner decides to hold an inquest with a jury, a jury of five is appointed.
TheLink will open in new windowBasic Law expressly provides that the principle of trial by jury is maintained.
Principles of defence
A number of principles of defence, which are in accordance with Article 14 of the International Covenant on Civil and Political Rights (which has been applied to Hong Kong by the Hong Kong Bill of Rights Ordinance (Cap 383)), have been incorporated in the Criminal Procedure Ordinance (Cap 221), Legal Aid in Criminal Cases Rules (Cap 221D), or absorbed into the common law.
The Basic Law guarantees the preservation of these rights, which are:
equality before the courts;
the right to a fair and public trial by a competent, independent and impartial tribunal established by law;
the right to trial by jury in the most serious cases;
the presumption of innocence;
the burden of proof lies on the prosecution;
the standard of proof is one of beyond reasonable doubt;
the right to prompt and detailed information as to the nature and cause of the charge;
adequate time for preparation of the defence case;
the right to legal representation;
the right to be tried without undue delay;
the right to legal assistance;
the right to be tried in one's presence;
the right to call witnesses and secure their presence in court;
the right to cross-examine prosecution witnesses;
the right to have the free service of an interpreter;
the right to remain silent in court;
the right to appeal against conviction and/or sentence;
the right not to be tried or punished for an offence for which one has previously been convicted or acquitted; and
the right to bail pending trial or appeal (subject, however, to the gravity of the offence charged and all the surrounding circumstances).