Bind Over

Overview

The purpose of bind over is to provide an opportunity for offenders to avoid a criminal record and the associated consequences that can come with it, such as difficulty in finding employment, obtaining visas or loans, or obtaining security clearance. The idea is to give individuals a second chance to learn from their mistakes and to demonstrate that they can be responsible members of society.

What is a O.N.E. Bind Over ?

Binding over is a sentencing option available in Hong Kong's criminal justice system. It is a process by which the prosecution offers no evidence (O.N.E.) in exchange the defendant admits to the facts relating to the offence and enters into a recognizance, with or without sureties, in a fixed sum, to be of good behaviour or to keep the peace for a period not exceeding three years. If the defendant breaches this condition, they may be required to pay a sum of money or face further punishment.

The process of binding over typically involves the following steps:

  1. The defendant is charged with an offence.

  2. The defendant's solicitor makes representations to the Department of Justice requesting that the case be disposed by way of a bind over.

  3. Assuming the bind over is approved, the defendant is asked to admit to the facts before the magistrate or judge.

  4. The prosecution then informs the magistrate that it will not offer any evidence against the defendant.

  5. The magistrate or judge explains to the defendant what a bind over entails and order the bind over. The magistrate or judge then set a specified period during which the defendant must not commit any further offences. This period can range from a few months to a year.

  6. The defendant may be required to provide a surety, usually in the form of a sum of money, which they will forfeit if they breach the conditions of their binding over order.

  7. If the defendant breaches the conditions of their binding over order, they may be required to pay the forfeited sum of money or face further punishment, such as imprisonment.

Binding over is considered a lenient sentencing option and is often used for minor offences (e.g. common assault) where the defendant is not considered to be a danger to the community. It is also commonly used as a means of diverting offenders away from the criminal justice system, as it allows them to avoid a criminal record. However, it should be noted that a binding over order may still be recorded in a defendant's criminal history and can be used in future sentencing decisions.

Factors Considered for a Bind Over

The Department of Justice usually considers the following factors when deciding whether a case can be disposed by a way of a bind over:

  • whether the defendant has a pre-existing criminal record;
  • how serious the offence is;
  • the age of the defendant;
  • whether public interest requires the offence to be prosecuted;
  • whether the consequences would be out of all proportion to the gravity of the offence;
  • how the victim feels about the defendant being granted a bind over; and
  • whether the defendant is remorseful.

Ultimately, the decision is entirely at the discretion of the Court Prosecutor or Public Prosecutor in charge of the case. The decision whether to dispose of the case by way of a bind over cannot be appealed.

Conclusion

A solicitor plays an essential role in obtaining a bind over for their clients. They provide legal advice on the potential consequences of a bind over, negotiate the terms of the agreement with the prosecution, and represent their clients in court. A solicitor can also provide guidance on how to comply with the conditions of the bind over, ensuring that their clients avoid any future legal trouble. By working with a solicitor, individuals can protect their rights and interests while avoiding unnecessary legal complications.

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