Obtaining a Bind Over

The purpose of a bind over is to give offenders an opportunity to avoid a criminal record and the negative consequences that may follow, such as difficulties in securing employment, obtaining visas or loans, or gaining security clearance. It is intended to offer individuals a second chance to learn from their mistakes and to show that they can act as responsible members of society.

If you require immediate assistance, please call +852 9547 5353 or reach us on WhatsApp. We are available 24/7.

Binding over is an alternative to the usual sentencing option which is 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 to the court or face further punishment.

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.

The process of obtaining a bind 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. If the bind over is approved by the Department of Justice, the defendant is given the opportunity to dispose of the case by way of a bind over, provided that he agrees to admit the facts of the case before the magistrate or judge.

4. On the day of the court hearing, the prosecution informs the court that it will not offer any evidence against the defendant.

5. The defendant is read the facts related to the offence prepared by the prosecution and is asked by the court to confirm that he is willing to admit those facts.

6. 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 keep the peace (not commit any further offences). This period can range from a few months to a year. The defendant is normally informed that if he breaches the conditions of the binding over order, they may be required to pay the forfeited sum of money or face further punishment, such as imprisonment.

7. The defendant is then required to sign a bind over agreement at the court's office.

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 and his background;
• the overall strength of the case;
• 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. There is no formal way to appeal the decision of the prosecution in the event that the bind over application is rejected.

If you have additional questions which are not addressed here or wish to schedule an appointment, please click link below, or contact us by telephone on +852 2176 4777, by WhatsApp (+852 9547 5353) or by email at enquiries@comtois.hk.