Chapter: | 227 | MAGISTRATES ORDINANCE | Gazette Number | Version Date |
To provide for the jurisdiction of magistrates and the procedure and practice before magistrates in relation to offences punishable on summary conviction, the transfer of charges to the District Court and the committal of persons charged with indictable offences and for other purposes.
[1 January 1933]
(Originally 41 of 1932 (Cap 227 1950)) Section: | 1 | Short title | | 30/06/1997 |
This Ordinance may be cited as the Magistrates Ordinance. Section: | 2 | Interpretation | L.N. 172 of 1999 | 05/07/1999 |
Remarks: Adaptation amendments retroactively made - see 59 of 1999 s. 3
PRELIMINARY
In this Ordinance, unless the context otherwise requires
"appellant" (上訴人) means the party appealing under Part VII from a decision of a magistrate;
"civil debt" (民事債項) means any sum of money claimed to be due which is recoverable before a magistrate otherwise than on information; (Replaced 35 of 1969 Schedule)
"counsel" (代表律師) means any barrister, advocate or solicitor having the right of audience before any court in Hong Kong; (Amended 59 of 1994 s. 6)
"deputy magistrate" (暫委裁判官) means a deputy magistrate appointed under section 5A; (Added 21 of 1999 s. 12)
"District Court" (區域法院) means the District Court of Hong Kong established by the District Court Ordinance (Cap 336); (Added 2 of 1953 s. 2. Amended 25 of 1998 s. 2)
"fine" (罰款) includes any pecuniary penalty or pecuniary forfeiture or pecuniary compensation payable under a conviction or order;
"indictable offence" (可公訴罪行) means any crime or offence for which a magistrate is authorized or empowered or required to commit the accused person to prison for trial before the court;
"indictment" (公訴) includes an information in the court;
"information" (告發) includes a charge; (Added 49 of 1965 s. 2)
"legal officer" (律政人員) has the same meaning as it has in section 2 of the Legal Officers Ordinance (Cap 87); (Added 13 of 1966 Schedule)
"magistrate" (裁判官) includes a permanent magistrate and a special magistrate; (Replaced 24 of 1949 s. 2)
"magistrates' clerk" (裁判官書記) includes (where there is more than one) either or any of such clerks or such other person as a magistrate directs to do anything required by this Ordinance to be done by the magistrates' clerk; [cf. 1879 c. 49 s. 48 U.K.]
"party" (一方) includes the HKSAR and also any person aggrieved within the meaning of section 105 or 113; (Amended 25 of 1998 s. 2; 59 of 1999 s. 3)
"prescribed" (訂明) means prescribed or provided by any enactment which relates to any offences, penalties, fines, costs, sums of money, orders, proceedings or matters to the punishment, recovery, making or conduct of which this Ordinance expressly or impliedly applies or may be applied; [cf. 1879 c. 49 s. 49 U.K.]
"prison" (監獄) includes any place or building or portion of a building set apart, or hereafter to be set apart, for the purpose of a prison under any Ordinance relating to prisons;
"Registrar" (司法常務官) means the Registrar of the High Court; (Amended 25 of 1998 s. 2)
"respondent" (答辯人) means the opposite party whose interest conflicts with the interest of any person appealing within the meaning of section 105 or 113;
"sum adjudged to be paid by a conviction" (根據定罪而判決須繳付的款項) and "sum adjudged to be paid by an order" (根據命令而判決須繳付的款項), respectively, include any costs adjudged to be paid by the conviction or order, as the case may be, of which the amount is ascertained by such conviction or order;
"witness order" (證人令) means an order made under section 84(1). (Added 59 of 1981 s. 2) Section: | 3 | Saving of special procedure | | 30/06/1997 |
Nothing in this Ordinance shall affect any special procedure provided in any Ordinance. Section: | 4 | Use of forms | | 30/06/1997 |
The forms in the rules made hereunder or forms to the like effect, with such variations or additions as circumstances may require, shall be deemed good, valid and sufficient in law. Section: | 5 | Chief Executive may by warrant appoint permanent and special magistrates | 25 of 1998 s. 2 | 01/07/1997 |
Remarks: Amendments retroactively made -see 25 of 1998 s. 2
PART I
CONSTITUTION OF MAGISTRATES - (1) The Chief Executive may by warrant from time to time appoint such number of permanent and special magistrates as are in his opinion required for the efficient administration of justice in Hong Kong and may in the case of special magistrates by such warrant limit the jurisdiction and powers to be exercised by the person so appointed. Such appointments together with the warrant of appointment where such warrant limits jurisdiction or powers to be exercised by the person appointed shall be notified in the Gazette. (Amended 48 of 1949 s. 3; 3 of 1974 s. 2; 59 of 1994 s. 6; 25 of 1998 s. 2)
- (2) A permanent magistrate shall exercise all the jurisdiction and powers conferred on a magistrate by any enactment in force in Hong Kong and also such jurisdiction and powers as may from time to time be conferred on a permanent magistrate. (Amended 59 of 1994 s. 6)
- (3) A special magistrate shall, subject to the provisions of his warrant of appointment, exercise all the jurisdiction conferred on a magistrate by any enactment in force in Hong Kong, but his powers of imposing imprisonment and fine shall, in the case of any enactment in force on 20 May 1949, be subject to the limitations as to the maximum term or terms of imprisonment and the maximum fine which such magistrate may lawfully impose under this Ordinance as amended from time to time and in the case of any enactment coming into force after 20 May 1949, be so subject unless such enactment expressly provides to the contrary. (Amended 59 of 1994 s. 6)
(4) (Repealed 47 of 1997 s. 10)
- (5) So long as any warrant of appointment of a magistrate issued under this section is in force and unrevoked, it shall continue to have effect notwithstanding his subsequent appointment to some other office.
- (6) Any appointment made under the provisions of subsection (1) may be given effect from a date anterior to that of the warrant by which it is made:
Provided that nothing herein contained shall be deemed to authorize the discharge of any magisterial functions by any person so appointed before the date of the warrant or before the requirements of section 17 of the Oaths and Declarations Ordinance (Cap 11) have been fulfilled. (Added 30 of 1958 s. 2. Amended 20 of 1972 s. 24)
(Added 24 of 1949 s. 3) - (1)
- A person shall be eligible to be appointed as a permanent magistrate if-
- (a)
- he is qualified to practise as a barrister, solicitor or advocate in a court in Hong Kong or any other common law jurisdiction having unlimited jurisdiction either in civil or criminal matters; and
- (b)
- since becoming so qualified, he has for a period of or periods totalling not less than 5 years-
- (i)
- practised as a barrister, solicitor or advocate in such a court;
- (ii)
- been a legal officer;
(iii) been the Director of Legal Aid or a Deputy Director of Legal Aid, Assistant Director of Legal Aid or Legal Aid Officer, appointed in accordance with section 3 of the Legal Aid Ordinance (Cap 91); - (iv)
- been the Official Receiver or an Assistant Official Receiver (Legal), Assistant Principal Solicitor, Senior Solicitor or Solicitor, appointed in accordance with section 75 of the Bankruptcy Ordinance (Cap 6); or
- (v)
- been the Director of Intellectual Property or a Deputy Director of Intellectual Property, Assistant Director of Intellectual Property, Senior Solicitor or Solicitor, appointed in accordance with section 3 of the Director of Intellectual Property (Establishment) Ordinance (Cap 412).
- (2)
- Notwithstanding subsection (1), a person shall also be eligible to be appointed as a permanent magistrate if-
- (a)
- he is qualified to practise as a barrister, solicitor or advocate in a court in Hong Kong or any other common law jurisdiction having unlimited jurisdiction either in civil or criminal matters; and
- (b)
- whether before or since becoming so qualified, he has for a period of or periods totalling not less than 5 years been a special magistrate appointed in accordance with section 5.
- (3)
- For the purposes of calculating the period of 5 years referred to in subsection (1)(b)-
- (a)
- periods of less than 5 years falling within any of the subparagraphs of that subsection may be combined;
- (b)
- periods served in an office specified in Part I of the First Schedule to the repealed Registrar General (Establishment) Ordinance (Cap 100) may be taken into account notwithstanding the repeal of that Ordinance.
(Added 10 of 2005 s. 142) - (1)
- A person shall be eligible to be appointed as a special magistrate if-
- (a)
- he is qualified to practise as a barrister, solicitor or advocate in a court in Hong Kong or any other common law jurisdiction having unlimited jurisdiction either in civil or criminal matters; and
- (b)
- since becoming so qualified, he has for a period of or periods totalling not less than 5 years-
- (i)
- practised as a barrister, solicitor or advocate in such a court;
- (ii)
- been a legal officer;
(iii) been the Director of Legal Aid or a Deputy Director of Legal Aid, Assistant Director of Legal Aid or Legal Aid Officer, appointed in accordance with section 3 of the Legal Aid Ordinance (Cap 91); - (iv)
- been the Official Receiver or an Assistant Official Receiver (Legal), Assistant Principal Solicitor, Senior Solicitor or Solicitor, appointed in accordance with section 75 of the Bankruptcy Ordinance (Cap 6); or
- (v)
- been the Director of Intellectual Property or a Deputy Director of Intellectual Property, Assistant Director of Intellectual Property, Senior Solicitor or Solicitor, appointed in accordance with section 3 of the Director of Intellectual Property (Establishment) Ordinance (Cap 412).
- (2)
- Notwithstanding subsection (1), a person shall also be eligible to be appointed as a special magistrate if-
- (a)
- he is qualified to practise as a barrister, solicitor or advocate in a court in Hong Kong or any other common law jurisdiction having unlimited jurisdiction either in civil or criminal matters; and
- (b)
- whether before or since becoming so qualified, he has for a period of or periods totalling not less than 5 years served in the grade of Court Prosecutor, Court Interpreter or Judicial Clerk in the Government.
- (3)
- For the purposes of calculating the period of 5 years referred to in subsection (1)(b)-
- (a)
- periods of less than 5 years falling within any of the subparagraphs of that subsection may be combined;
- (b)
- periods served in an office specified in Part I of the First Schedule to the repealed Registrar General (Establishment) Ordinance (Cap 100) may be taken into account notwithstanding the repeal of that Ordinance.
(Added 10 of 2005 s. 142) Section: | 5A | Appointment of deputy magistrates | 10 of 2005 | 08/07/2005 |
- (1)
- The Chief Justice may by warrant appoint any person who is eligible under section 5AA to be appointed as a permanent magistrate or under section 5AB to be appointed as a special magistrate to be a deputy magistrate for such period and on such terms as he thinks fit. Such appointment shall be notified in the Gazette. (Amended 10 of 2005 s. 143)
- (2)
- Subject to the terms of appointment, a deputy magistrate shall, during the period for which he is appointed, have all the jurisdiction, powers and privileges, and perform all the duties of a permanent magistrate and any reference in any law to a magistrate shall be construed accordingly.
- (3)
- Every appointment made in accordance with this section may be terminated by the Chief Justice at any time.
- (4)
- Where the hearing of any proceedings before a deputy magistrate is adjourned or where judgment is reserved therein or where the determination of any matter is subject to review, the deputy magistrate shall have power to resume the hearing and determine the proceedings or to deliver as the judgment of the magistrate's court the judgment which he has reserved or to review the determination which he has made, notwithstanding that before the hearing is resumed or judgment is delivered or the review is disposed of, his appointment has expired or has been terminated.
- (5)
- For the purposes of subsection (4), the power of a deputy magistrate to determine the proceedings in a resumed hearing includes the power of awarding costs and the making of any order ancillary to or consequential upon the award of costs.
(Added 21 of 1999 s. 13) Section: | 6 | (Repealed) | | 30/06/1997 |
(Repealed 13 of 1995 s. 31) Section: | 7 | (Repealed) | | 30/06/1997 |
(Repealed 47 of 1997 s. 10) Section: | 7A | (Repealed) | | 30/06/1997 |
(Repealed 13 of 1995 s. 36) Section: | 7B | (Repealed) | | 30/06/1997 |
(Repealed 13 of 1995 s. 36) Section: | 7C | (Repealed) | | 30/06/1997 |
(Repealed 13 of 1995 s. 36) Section: | 7D | Notice of prosecution | | 30/06/1997 |
PART II
PROCEDURE IN RESPECT OF SUMMARY OFFENCES
(1) Where the penalty which may be imposed upon conviction for an offence does not exceed a fine of $10000
and imprisonment for 6 months (whether with or without any additional order, relating to suspension or cancellation of a licence, disqualification from obtaining or holding a licence, or as to compensation or otherwise), any public officer or body corporate authorized to prosecute in respect of that offence may file in a magistrate's court a notice of prosecution and shall, within 14 days of such filing, serve a copy of that notice by post on the defendant. (See Forms 104, 105)
(2) A notice under subsection (1)- - (a)
- shall be in the prescribed form;
- (b)
- shall be signed by the public officer or on behalf of the body corporate filing the notice;
- (c)
- shall state
- (i)
- the name and address of the defendant;
- (ii)
- particulars of the offence which is alleged to have been committed and of the time and place at which it is alleged to have been committed; and
(iii) the date before which the defendant may file a written notice requiring a hearing being a date not less than 35 days after the date on which the notice of prosecution was filed; and
- (d)
- shall be accompanied by a statement of the penalty which may be imposed and any other order which
may be made upon conviction. (Added 18 of 1984 s. 2) Section: | 7E | Procedure where hearing required | L.N. 362 of 1997 | 01/07/1997 |
- (1)
- Where a notice of prosecution has been filed and served and the defendant requires a hearing, he shall, by written notice filed in the magistrate's court in which the notice of prosecution was filed and before the date stated in the notice of prosecution, so state and shall, in that notice, state whether he intends to plead guilty or not guilty to the offence. (See Forms 109, 110, 111)
- (2)
- Where a written notice by the defendant mentioned in subsection (1) is filed, a summons shall be issued under section 8 and the prosecution shall proceed as if an information had been laid under that section by an informant deemed to act on behalf of the Secretary for Justice. (Amended L.N. 362 of 1997)
(Added 18 of 1984 s. 2)
- (1)
- Where a notice of prosecution is filed and served and the defendant does not file a written notice under section 7E(1), a magistrate sitting in the absence of the parties and otherwise than in open and public court, shall determine the matter as if the defendant has pleaded guilty to the offence alleged in the notice of prosecution and may order the defendant to pay any fine or costs permitted by law.
- (2)
- In determining the matter under subsection (1), the magistrate may take into account the nature of the offence and the particulars alleged in the notice of prosecution, any previous convictions in the statement accompany in the notice of prosecution, and any matter submitted by the defendant in response to the notice of prosecution.
- (3)
- Where a magistrate sitting under subsection (1) considers that a fine may not be an adequate penalty in the circumstances a summons shall be issued under section 8 and the prosecution shall proceed as if an information had been laid under that section by an informant deemed to act on behalf of the Secretary for Justice. (Amended L.N. 362 of 1997)
- (4)
- Where a prosecution proceeds under subsection (3), the magistrate may, having heard what each party has to say as to sentence, impose any penalty or make any other order permitted by law as in a case where a defendant admits the truth of an information.
(Added 18 of 1984 s. 2)
- (1)
- Where a magistrate has determined a matter under section 7F(1) and imposed a fine or ordered costs to be paid, a notice of such fine or costs shall be served by post on the defendant calling upon him to pay such fine or costs within such time, being not less than 21 days after the determination of the matter, as may be specified therein. (See Forms 106, 107)
- (2)
- Where a fine or costs are not paid within the time specified in the notice referred to in subsection (1), a magistrate shall cause a further notice to be served personally on the defendant by a police officer, usher or other
Section: | 7F | Procedure where no hearing required | L.N. 362 of 1997 | 01/07/1997 |
Section: | 7G | Procedure after determination | | 30/06/1997 |
Cap 227 - MAGISTRATES ORDINANCE
officer of a magistrate's court, requiring him to make payment of the fine or costs within 14 days of the notice failing which a summons or warrant will be issued under section 101A.
(Added 18 of 1984 s. 2) Section: | 7H | Review | | 30/06/1997 |
Where, on application being made at any time by the defendant, a magistrate is satisfied that a notice of prosecution has not come to the personal notice of the defendant, the magistrate shall review his determination in the matter and section 104 (except subsection (1)) shall apply to that review. (See Form 108)
(Added 18 of 1984 s. 2) Section: | 7I | Section 26 not to apply on review | | 30/06/1997 |
Where a magistrate reviews his determination on a matter under section 7H and reverses his decision, proceedings may be taken, notwithstanding section 26, within 6 months from the date of the review. (Added 18 of 1984 s. 2) Section: | 7J | Withdrawal of notice of prosecution | | 30/06/1997 |
The person filing a notice of prosecution may, at any time before the matter is determined under section 7F(1), by written notice filed in the magistrate's court, withdraw the notice of prosecution. (Added 18 of 1984 s. 2) Section: | 8 | Issue of summons to defendant and mode of service thereof | | 30/06/1997 |
(1) In every case where a complaint is made to or an information laid before a magistrate or an officer of a magistrate's court who is authorized in writing for that purpose by a magistrate, being a complaint or information in respect of which a magistrate has power to convict summarily or to make an order for the payment of money or otherwise, it shall be lawful, subject to this Part, for a summons to be issued by a magistrate or an officer of a magistrate's court who is authorized under this subsection. (See Form 1) (Replaced 18 of 1981 s. 2. Amended 12 of 1992 s. 2)
(1A) Every such summons shall be issued to the person against whom the complaint has been made or information laid, stating the matter of the complaint or information and requiring him to appear at a certain time and place before a magistrate to answer to the complaint or information and to be further dealt with according to law. (Added 18 of 1981 s. 2. Amended 59 of 1994 s. 2)
(1B) (a) (Repealed 12 of 1992 s. 2)
(b) A summons may be issued without consideration of the complaint or information by the magistrate or an officer of a magistrate's court who is authorized under subsection (1), but, if a magistrate does consider the complaint or information, he may for good cause refuse to issue a summons. (Added 18 of 1981 s. 2. Amended 12 of 1992 s. 2)
(1C) (Repealed 12 of 1992 s. 2) (1D) Every such summons shall be in the prescribed form. (Replaced 12 of 1992 s. 2)
(2) (a) Every such summons shall be served- - (i)
- by hand; or
- (ii)
- by post.
- (b)
- Where a summons is served by post and the person to whom it is directed does not appear at the time and place specified in the summons for the appearance of that person, such service shall be deemed to have never been effected, and the summons shall thereafter be served by hand.
- (c)
- Where a summons is served by hand, the police officer, the usher or other officer of a magistrate's court, or officer of the Independent Commission Against Corruption who served the summons shall, save as provided in subsection (3), attend before a magistrate at any time and place specified by a magistrate to depose, if necessary, to its service. (Amended 48 of 1996 s. 24)
- (d)
- Nothing in this subsection shall oblige a magistrate or an officer of a magistrate's court who is authorized under subsection (1) to issue a summons in any case where the defendant appears
voluntarily or upon his recognizance or is in the custody of the police or charged on the charge sheet in which case it shall be lawful for a magistrate to hear and determine the case in all respects as if the defendant had appeared in answer to a summons.
- (e) In this subsection
"served by hand" (由專人送達) means served by a police officer, usher or other officer of a magistrate's court, or officer of the Independent Commission Against Corruption on the person to whom the summons is directed- (Amended 48 of 1996 s. 24) - (a) by delivering the summons to that person personally; or
- (b) by leaving it with a third person for that person at that person's last or most usual place of abode;
"served by post" (以郵遞方式送達) means sent by an usher or other officer of a magistrate's court by ordinary post to the residential or business address of the person to whom it is directed. (Replaced 59 of 1994 s. 2) - (3) A statutory declaration by a police officer, usher or other officer stating that he delivered a summons to the person to whom it is directed personally or that he left it with a third person for that person at that person's last or most usual place of abode, shall on its production be admissible in evidence without further proof, and until the contrary is proved the magistrate before whom it is produced shall presume- (Amended 59 of 1994 s. 2; 14 of 1997 s. 9)
- (a) that the facts stated therein are true; and
- (b) that the summons was duly served in accordance with subsection (2)(a)(i). (Added 36 of 1976 s. 2)
- (4) Notwithstanding subsection (3) a magistrate may require the police officer, usher or other officer who served a summons to attend before him and give evidence on oath as to its service. (Added 36 of 1976 s. 2. Amended 59 of 1994 s. 2)
- (5) Subject to subsection (6), at any time before the person to whom a summons is directed has appeared to answer the complaint or information, a magistrate may, where practicable upon first hearing the complainant or informant, cancel the summons by writing under his hand which shall be served in the manner provided for the service of a summons by hand in subsection (2). (Added 18 of 1981 s. 2. Amended 59 of 1994 s. 2)
- (6) Where a summons has been cancelled under subsection (5) a magistrate may, within 2 months of the date of such cancellation, order that the complainant or informant shall pay to the defendant such costs, not exceeding $5000, as he may think fit. (Added 18 of 1981 s. 2)
[cf. 1848 c. 43 s. 1 U.K.]
- (1) Notwithstanding section 8, if a public officer specified in the first column of the Fourth Schedule reasonably suspects that a person has committed any offence specified opposite thereto in the second column of that Schedule, the public officer may serve on that person personally a notice requiring him to appear at a time, being not earlier than 3 clear days after the notice has been served on him and place specified in the notice before a magistrate to be dealt with according to law. (See Forms 1A , 1B)
(2) A notice under subsection (1)- - (a) shall be in the prescribed form;
- (b) shall be signed by the public officer by whom it is served; and
- (c) shall state
- (i) the name and address of the person upon whom the notice is served;
- (ii) the offence which is alleged to have been committed with sufficient particulars thereof;
(iii) the time and place at which the offence is alleged to have been committed; and (iv) the time and place at which the person on whom the notice is served is required to appear.
- (3) If a person upon whom a notice under subsection (1) has been served fails to appear before a magistrate at the time and place mentioned in the notice, and it is made to appear to the magistrate by oath that the notice was served on that person personally, the magistrate may issue his warrant for the apprehension of that person and to bring that person before him or another magistrate to be dealt with according to law. (See Form 2A)
- (4) If a person upon whom a notice under subsection (1) has been served appears before a magistrate in accordance with the notice, or is brought before a magistrate by a warrant issued under subsection (3), the magistrate may hear and determine the offence alleged in the notice as if a complaint has been made or an information has been
laid against that person in respect of the offence and for such purposes, the provisions under this Ordinance relating to hearing of complaint or information and the proceedings thereon shall apply mutatis mutandis.
- (5)
- If a person upon whom a notice under subsection (1) has been served is brought before a magistrate by a warrant issued under subsection (3), the magistrate shall order that person to pay costs of not less than $80 and not more than $1500, whether or not he is convicted of the offence alleged in the notice: (Amended 18 of 1984 s. 3)
Provided that no order shall be made where the magistrate is satisfied that exceptional circumstances existed which rendered it inequitable to require compliance with the notice.
- (6)
- Any costs ordered to be paid under subsection (5) shall be recoverable under section 69(2) in the same manner as costs awarded under section 69(1).
- (7)
- Notwithstanding anything to the contrary in this Ordinance, a magistrate may permit a representative to appear on behalf of a person upon whom a notice under subsection (1) has been served where such representative satisfies the magistrate that he is authorized to enter a plea of guilty and is himself able to pay any fine imposed.
(Added 59 of 1972 s. 2)
- (1)
- Where a complaint or information laid before a magistrate is substantiated by oath before him, the magistrate may, in the first instance or notwithstanding that a summons has been previously issued, issue a warrant to arrest the defendant and bring him before a magistrate to answer to the complaint or information. (See Form 4)
(2) Where a defendant is arrested under a warrant issued under subsection (1), he shall be brought before a
magistrate, who may adjourn the hearing and deal with the defendant in accordance with section 20. (Replaced 36 of 1976 s. 3)
Remarks: Amendments retroactively made -see 25 of 1998 s. 2 - (1)
- Every complaint and every information under this Part, unless some enactment otherwise requires, may respectively be made or laid without any oath being made of the truth thereof; except in case of an information where the magistrate receiving the same thereupon issues his warrant in the first instance to apprehend the defendant as aforesaid; and in every such case where the magistrate issues his warrant in the first instance the matter of the information shall be substantiated by the oath of the informant, or of some witness on his behalf, before any such warrant shall be issued. (Amended 25 of 1998 s. 2)
- (2)
- For every distinct offence of which any person is accused there shall be a separate complaint or information, and every such complaint or information shall be tried separately except in the following cases
- (a)
- when a person is accused of more offences than one of the same or a similar character he may, subject to the provisions of section 26, be charged with and tried at the same time for any such offence, whether it is committed with respect to the same person or not: (Amended 49 of 1965 s. 4)
Provided that if the magistrate is of opinion that a person accused will be prejudiced or embarrassed in his defence, he may order a separate trial of any such charge or charges;
- (b)
- if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at the same time for every such offence; and
- (c)
- if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused person may be charged with having committed all or any of such offences and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (Replaced 24 of 1949 s. 6)
- (3)
- Every such complaint or information may be made or laid by the complainant or informant in person or by his counsel or other person authorized in that behalf.
- (4)
- Every such complaint or information shall comply with the Indictment Rules (Cap 221 sub. leg.) in so far as those rules are applicable mutatis mutandis to any such complaint or information. (Replaced 36 of 1976 s. 4)
Section: | 11 | Place and manner of hearing | | 30/06/1997 |
The room or place in which a magistrate sits to hear and try any complaint or information shall be deemed an open and public court, to which the public generally may have access, so far as the same can conveniently contain them, unless the magistrate otherwise directs where the evidence is of an indecent character, or where a prosecution is for an offence against the Societies Ordinance (Cap 151) and is an offence relating to or otherwise connected with a Triad Society, in which case he shall make a note on the depositions of the direction which he has given:
Provided that in any case the delivery by the magistrate of his determination and any proceedings subsequent thereto, other than a review under section 104 which requires the hearing of evidence, shall take place in open and public court.
(Amended 24 of 1949 s. 7; 16 of 1960 s. 2)
[cf. 1848 c. 43 s. 12 U.K.] Section: | 12 | Prosecution of offences to be under control of Secretary for Justice | L.N. 362 of 1997 | 01/07/1997 |
The Secretary for Justice is hereby entrusted with the duty and discretion of conducting the prosecution of all offences cognizable by a magistrate:
Provided - (a)
- that it shall be lawful for any member of the police force and such other public servant as the Secretary for Justice may from time to time by any general or special direction authorize to lay before a magistrate or an officer of a magistrate's court who is authorized under section 8(1) an information in respect of an offence and any such information shall be deemed to have been laid on behalf of the Secretary for Justice; (Amended 12 of 1992 s. 3)
- (b)
- that in any such case the Secretary for Justice shall be deemed to be a party to the proceedings and
such member or public servant shall not be so deemed. (Added 24 of 1949 s. 8. Amended L.N. 362 of 1997) Section: | 13 | Appointment of official prosecutors by Secretary for Justice* | 25 of 2008 | 11/07/2008 |
The Secretary for Justice may appoint any public officer or class of public officers to act as official prosecutor or prosecutors and to conduct generally on his behalf any prosecution before a magistrate or any specified classes of prosecutions or any particular case. Any official prosecutor so appointed may without any written authority appear and plead before a magistrate any case of which he has charge which is being inquired into, tried or reviewed.
(Added 24 of 1949 s. 8. Amended L.N. 362 of 1997; 25 of 2008 s. 3)
Note:
* (Amended 25 of 2008 s. 3) Section: | 14 | Private prosecution and intervention by the Secretary for Justice | 25 of 2008 | 11/07/2008 |
- (1)
- A complainant or informant who is not acting or deemed to act on behalf of the Secretary for Justice may if he so wishes and without any prior leave conduct in person or by counsel on his behalf the prosecution of the offence to which the complaint or information relates but the Secretary for Justice may at any stage of the proceedings before the magistrate intervene and assume the conduct of the proceedings and may within the time limited by section 104 for applying for a review intervene for the purpose of applying for or being made a party to any review.
- (2)
- As from the date of any such intervention the Secretary for Justice shall be deemed to be a party to the proceedings or the review in lieu of such complainant or informant.
- (3)
- Such intervention may be effected by oral intimation given to the magistrate by a legal officer in the Department of Justice acting under the instructions of the Secretary for Justice or by notice in writing under the hand of the Secretary for Justice of his intervention lodged with the magistrates' clerk. In the event of oral intimation as aforesaid having been given the Secretary for Justice shall as soon as conveniently may be cause notice in writing of his intention to be lodged as aforesaid. (Amended 25 of 2008 s. 4)
(Added 24 of 1949 s. 8. Amended L.N. 362 of 1997)
- (1)
- In any case before a magistrate in which an accused person is being tried for an indictable offence pursuant to section 91, 92 or 92A and at any stage thereof before judgment and in any case in which an inquiry is being held by a magistrate for the purpose of determining whether an accused should be committed for trial, the Secretary for Justice may enter a nolle prosequi by informing the magistrate in writing that the HKSAR intends that the proceedings shall not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognizances shall be discharged; but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts. (Amended 59 of 1992 s. 13; L.N. 362 of 1997; 25 of 1998 s. 2; 59 of 1999 s. 3)
- (2)
- If the accused shall not be before the magistrate when such nolle prosequi is entered the magistrates' clerk shall forthwith cause notice in writing of the entry of such nolle prosequi to be given to the keeper of the prison in which such accused may be detained.
Section: | 15 | Secretary for Justice may withdraw case by entering nolle prosequi* | 25 of 2008 | 11/07/2008 |
(Added 24 of 1949 s. 8)
Note:
* (Replaced 25 of 2008 s. 5) Section: | 16 | Rights of parties to conduct case personally or by counsel | L.N. 362 of 1997 | 01/07/1997 |
- (1)
- The party against whom the complaint is made or information laid shall be admitted to make his full answer and defence thereto and to have the witnesses examined and cross-examined by him or by counsel on his behalf.
- (2)
- Without prejudice to the rights of the Secretary for Justice every complainant or informant shall be at liberty to conduct the complaint or information respectively and to have the witnesses examined and cross-examined by him or by counsel on his behalf. (Amended L.N. 362 of 1997)
(Added 24 of 1949 s. 8) Section: | 17 | (Repealed 25 of 2008 s. 6) | 25 of 2008 | 11/07/2008 |
Section: | 18 | Appearance by counsel | | 30/06/1997 |
At the hearing of a complaint or information, a party may be represented by counsel; and an absent party so represented shall be deemed not to be absent: Provided that appearance of a party by counsel shall not satisfy any provision in any enactment or any condition of a recognizance expressly requiring the appearance of the party. (Replaced 36 of 1976 s. 5) Section: | 18A | Non-appearance of defendant | | 30/06/1997 |
Subject to sections 18E and 19A(5), in any case where a summons has been served on the defendant a reasonable time before the hearing and at the time and place appointed for the hearing only the complainant or informant appears, the magistrate - (a)
- may issue a warrant to arrest the defendant and bring him before a magistrate and adjourn the hearing for such time as he may think fit; (See Form 2)
- (b)
- may adjourn the hearing under section 20 and if the defendant does not appear at the time and place to which the hearing is adjourned may issue a warrant to arrest the defendant and bring him before a magistrate; or
- (c)
- may, upon the application of the complainant or informant, dismiss the complaint or information.
(Added 18 of 1984 s. 4) (Added 36 of 1976 s. 5. Amended 18 of 1984 s. 4) Section: | 18B | Non-appearance of informant or complainant | | 30/06/1997 |
- (1)
- Where at the hearing the defendant appears, but the complainant or informant does not appear, the magistrate
- (a)
- shall, if the defendant is brought before him by virtue of a warrant and the complainant or informant has not had adequate notice of the hearing, adjourn the hearing under section 20; and
- (b)
- may, in any other case, dismiss the complaint or information or adjourn the hearing under section 20.
- (2)
- Where a complaint or information is dismissed under subsection (1), the magistrate may order that the complainant or informant shall pay to the defendant such costs, not exceeding $5000, as the magistrate may think fit. (Amended 18 of 1981 s. 3)
(Added 36 of 1976 s. 5) Section: | 18C | Non-appearance of either party | | 30/06/1997 |
- (1)
- Where at the hearing neither the complainant or informant nor the defendant appears, the magistrate may
- (a)
- dismiss the information or complaint; or
- (b)
- adjourn the hearing under section 20.
- (2)
- Where a complaint or information is dismissed under subsection (1), such dismissal shall not operate as a
bar to any subsequent proceedings against the defendant in the same matter. (Added 36 of 1976 s. 5) Section: | 18D | Appearance of both parties | | 30/06/1997 |
Where at the hearing both the complainant or informant and the defendant appear, the magistrate shall proceed to hear and determine the case. (Added 36 of 1976 s. 5) Section: | 18E | Plea of guilty by letter | L.N. 294 of 2000 | 01/01/2001 |
- (1)
- Subject to subsection (3), the defendant may, in the case of an offence specified in the Third Schedule, plead guilty by letter addressed to the magistrate, and thereupon the magistrate may
- (a