Guide for Arrested Person
in Hong Kong
This guide is meant to give an overview of how a criminal case is typically handled by the Hong Kong criminal justice system. It is not meant to be an exhaustive understanding of all the possible scenarios but should give its readers a general understanding of what to expect in the simplest terms.
Starting Point: A Crime is Reported
The starting point of any criminal case is the reporting of a crime. It is usually done by either the victim, a witness of a crime, or an officer of the Hong Kong Police Force (the "Police").
Crime Reported by a Victim or a Witness of a Crime
A person who believes that he/she has been the victim of a crime can report the same to the Police. Criminal complaints are traditionally made in person at the report room of police stations in Hong Kong. The reporting officer does the initial triage and assign an investigator to the case if it is believed a crime has been committed.
More immediate and urgent crimes can also be reported by the public by dialling "999" whereas less urgent crimes like cybercrimes can be reported on the e-Report Centre Police Public Page of the Hong Kong Police Force.
Crime witnessed by an officer of the Hong Kong Police Force
It is also very common for police officers to be the one reporting a crime that they have come across whilst performing their duty. The type of offences that they normally report tend to be "victimless" crimes like drug and road traffic offences.
Pursuant to Section 50 of the Police Force Ordinance (Cap. 232), police officers can arrest any person who he/she reasonably believes will be charged with, or whom he/she reasonably suspects of being guilty of any offence for which the sentence is fixed by law, or for which a person may (on a first conviction for that offence) be sentenced to imprisonment, or any offence if it appears to the police officer that service of a summons is impracticable, or any person whom he/she reasonably suspects of being liable to deportation from Hong Kong.
Brought to the Nearest Station
The person under arrest will be brought before the Duty Officer of the police station covering the district or area where the arrest took place.
Photograph and Fingerprints
At the station, the arrested person will be registered as being arrested, photograph of the arrested person and his/her fingerprints will be taken for the Police records.
Depending on the nature of the offence alleged to have been committed by the suspect, the police can release the suspect on bail. If a suspect has been formally charged of an offence, bail is usually extended until the first court hearing. After each hearing, bail is usually extended to the next hearing date until the proceedings are concluded. Alternatively, if the investigation is ongoing, bail is usually extended for 1-2 month to allow the officers to continue their investigation and determine whether the suspect should be charged or not.
The bail conditions, for lesser crimes, will offend require paying a sum of money to the police and report to a police station at a given interval or to attend court at a specific date. Depending on the nature of the offence, the suspect might be forbidden from contacting the victim or any witnesses involved.
For serious crimes, police bail will almost always be refused, and the decision will be left to the court to make the decision.
Court Bail is usually decided at a Magistrates' Courts where the case is first heard. In some circumstances, an application for court bail can be heard before the High Court.
The Court, when considering whether to grant bail, will look at a number of factors, including: the nature of the crime, whether the suspect has a criminal record and the extent of such record, whether the suspect is likely to reoffend during that time, whether the suspect is a flight risk, whether the suspect present a risk for the community, whether the suspect will likely interfere with the investigation or the witnesses involved. There may be more factors considered by the Court, but these are the most common one.
If the Court is minded to grant bail to a suspect, the rule of thumb is the more serious the offence is, the more cumbersome the bail conditions are likely to be. For example, a suspect might be required to report daily to a police station near to his home and surrender his travel documents.
The investigation is the process by which the Police gathers evidence and interrogate witnesses to determine whether a crime has been committed and, if a crime has been committed who is responsible for having committed the crime.
The rule of thumb is, the more serious the crime is, the longer the investigation will take.
However, the Police might also take a long period of time before it completes its investigation of lesser offences. It is often a question of resourcing; competing resources tend to be assigned first to more serious cases.
Statement under Caution
The arrested person has a constitutional right against self-incrimination (the right to stay silent) and therefore is not required to give a statement or answer any questions from a police officer.
At the end of an investigation, one of two things can happen: either the case is closed due to a lack of evidence or a criminal charge is laid on a suspected or arrested person. A "criminal charge" is defined as a formal accusation made by a governmental authority (usually a government appointed prosecutor or the Police) asserting that somebody has committed a crime.
For most criminal cases, the Police will issue the formal charges, and they eventually reviewed (and amended where deemed necessary) by the Department of Justice.
First Initial Hearings
A person accused of an offence will usually be brought to a Magistrates Courts for the first hearing. The location of the Magistrates' Court will generally depend on where the alleged offence took place.
If the prosecution needs more time to investigate or seek legal advice, or if it decides to transfer the case for trial in a higher court, then it will ask for an adjournment. Otherwise, the charge is read out to the accused person at this hearing, and they are asked to plead guilty or not guilty.
If a Defendant pleads guilty to all the offences he/she has been charged with, the court will then move to sentencing. In some instances, the court might be minded to adjourn the sentencing asking the Social Welfare Department to consider whether the Defendant is suitable for a Community Service Order or a Probation Order. Otherwise, the Defendant has an opportunity to provide mitigating facts to the Court as to why it should make a punishment for the offence(s) less severe.
It is important to note here that a Defendant who pleads guilty at the earliest opportunity will receive a 1/3 discount from the Court when sentenced.
Pleading Not Guilty
If the Defendant pleads not guilty, then the case is adjourned and the date for the trial is set.
Defendant Found Guilty
If the Defendant is found guilty, the court will then move to sentencing. As mentioned above, there are times when the court will need to adjourn the case to further consider what sentence should be imposed.
Defendant Found Not Guilty
If the Defendant is found not guilty, the Court will end the proceedings and the Defendant can go back to living his/her live normal.
Courts: Types and Location
The Department of Justice has the sole discretion to decide where a case will be prosecuted. However, there are certain type of offences that can only be tried in a specific court. For example, offences like murder and rape can only be tried at the High Court.
There are seven Magistrates' Courts in Hong Kong, and they are geographically spread out to service all of Hong Kong. Usually, a case will be assigned to a given Magistrates' Courts based on its proximity to where a crime is alleged to have taken place. For example, if a crime is alleged to have taken place in Central, the case would normally be assigned to Eastern Magistrates' Courts because that Magistrates' Courts handles all the crimes that take place on Hong Kong Island.
- Eastern Magistrates’ Courts
- Failing Magistrates’ Courts
- Kowloon City Magistrates’ Courts
- Kwun Tong Magistrates’ Courts
- Shatin Magistrates’ Courts
- Tuen Mun Magistrates’ Courts
- West Kowloon Magistrates’ Courts
They handle all the lesser offences and can sentence a maximum of 2 years of jail time. They also handle all the arraignments and initial bail application.
The District Court is considered an "intermediate court" in the Hong Kong judicial system, and it handles more serious offences than Magistrates' Courts. A judge at the District Court can impose a custodial sentence of a maximum of 7 years against a defendant found guilty of an offence.
The District Court is located at "12 Harbour Road, Wan Chai, Hong Kong Island".
Court of First Instance (High Court)
If you need urgent legal advice on a criminal matter (including if you or a loved one has been arrested), please contact our Mr. Francis Comtois by telephone or WhatsApp on +852 9547 5353.
We are able to assist our clients by doing:
- legal visits if they are under investigation or detained at a police station;
- bail applications;
- plea bargaining with the police or the Department of Justice;
- bind over application;
- mitigation for sentence;
- criminal trials in court; and
If you wish to discuss your case with us, please contact us to schedule your free initial consultation.