Criminal trial at Magistrates Courts in Hong Kong

So you are facing criminal prosecution and have pleaded not guilty at the Mention hearing after seeking legal advice. The trial date is coming up.

What will happen at the criminal trial at the Magistrates' Court and what are the things to look out for?

About a week before the trial

About a week before the trial, the defence lawyers and the prosecutor will prepare a document called "Admitted Facts" to narrow down the issues in dispute. And if the case involves an alleged "confession" made by the Defendant, and the defence lawyers intend to challenge the admissibility of the confession on the ground that it was not made voluntarily and not recorded accurately, the defence lawyers will prepare "Grounds of Objection to the Admissibility of Admissions" and submit then to Court at the trial.

The trial

Trial starts

Magistrates Courts generally start at 9:30am. After the court session starts, the Court will read out the charge and take the Defendant's plea again, ie. whether he will plead guilty or not guilty.

After the Defendant pleads not guilty, the Court will ascertain with the defence and the prosecution how many prosecution witnesses will be called, whether there is a confession, and if so whether there will be "Special Issues", ie. whether the admissibility of such confession is challenged. Afterwards, the prosecutor will read out the Admitted Facts and the Defendant will be asked whether he agrees to the contents. After that, the prosecutor will call prosecution witnesses directly without an opening submission.

How witnesses testify

The testimony of each witness is divided into 3 parts: Examination-in-chief, cross-examination, and re-examination.

Examination-in-chief

During examination-in-chief, the lawyer or prosecutor who called the witness will ask that witness questions about how the alleged incident happened. No leading questions can be asked. A leading question is one where an answer has been provided in the question.

An example of examination-in-chief is as follows:

Prosecutor: What did you see at [the offence location] at the [offence time]?

Prosecution Witness ("PW":): I saw the Defendant assaulting someone.

Prosecutor: Who did the Defendant assault and how did he do so?

PW: The Defendant punched a woman's face.

A question that is leading in nature and would be disallowed in examination-in-chief: You saw the Defendant punch a woman's face at [the offence location] at [the offence time], is that right?

Cross-examination

During cross-examination, the lawyer from the opposite side will ask witness various questions. For example, a defence lawyer will cross-examine prosecution witnesses, and a prosecutor will cross-examine defence witnesses. The purpose of cross-examination is to establish facts that are useful for the side conducting it, or expose the inconsistencies or illogicalities of the witness's testimonies so as to persuade the Court that that witness is not a credible or reliable witness.

Contrary to examination-in-chief, whilst it is not required, most questions are leading questions during cross-examination.

For example, a defence lawyer may cross-examine a prosecution witness as follows:

Defence lawyer: PC12345, when you arrived at the scene it was already 8 o'clock in the evening and it was dark already. The lights at the scene were dim. Am I correct?

PW: Yes.

Defence lawyer: It was so dark that you needed to use a flashlight torch for illumination, was it not?

PW: Yes.

Defence lawyer: When you first saw the Defendant, you were at least 5 metres away from him, were you not?

PW: Yes.

Defence lawyer: You did not actually see the Defendant holding a cigarette joint in his hand, did you?

PW: I did see it. I used a flashlight torch and pointed it towards the Defendant's right hand and I saw his right hand holding a cigarette, so I approached him, investigated and then arrested him.

Defence lawyer: But in your own witness statement which was made the night you arrested the Defendant, you stated that you pointed your flashlight torch to the Defendant's face and saw his furtive looks and approached him, before you found the cannabis joint in the defendant's hand. You did not mention in your statement that you pointed your flashlight torch to the Defendant's hand.

PW: Perhaps I was imprecise in my statement.

At this point, the inconsistencies between the PW's testimonies in Court and his own witness statement have been exposed. His testimonies also sound illogical. In his submissions, the defence lawyer may suggest to the Court that this PW was not a credible and reliable witness.

Re-examination

Not all witnesses will be re-examined. They are only re-examined when the lawyer or prosecutor conducting the examination-in-chief wishes to clarify with the witness about matters that arose during cross-examination.

Trial: Prosecution Witnesses ("PW")

PWs will take turn to testify. PW1 is normally the alleged victim or eye-witness. He will testify about what he saw, heard, felt etc. As explained above, after examination-in-chief, he will be cross-examined by the defence lawyer and then may be re-examined. And then there are PW2, PW3 etc.

During examination-in-chief, the prosecutor will show the exhibits described by the PW and then seek to produce them as prosecution exhibits.

If there are "special issues", then the police officers who arrested and cautioned the defendant who took a statement from the defendant would also testify. He would normally tell the Court how he conducted the relevant procedure, explained the rights to the defendant, and how the defendant confessed to the crime.

For example, the PW may say: I cautioned the defendant, who then said to me “Ah Sir, give me a chance please. I smoked cannabis because I felt stressed out. " None of my teammates nor I exerted any violence, threat or offered any inducement to the defendant.

Special issues: Alternative Procedure

After all prosecution witnesses finish testifying, in cases where there are special issues, the Court will normally adopt the Alternative Procedure and rule on whether there is a case to answer on special issues. If there is a case to answer, the defendant may give evidence in the witness box and he may also call defence witnesses to testify on how the confession was taken involuntarily.

The procedure is similar. The defendant will testify first (examination-in-chief) as the defence counsel guides him through his testimony, before he is cross-examined by the prosecutor, followed by any re-examination by defence counsel.

An example of the defendant giving evidence on special issue is as follows:

Defence lawyer (in chief): What happened after the police arrived at the scene?

Defendant: 3 plain clothes officer came to me. One cursed and yelled at me saying I was a punk. Another took me to the waterbed and said to me "it's a small matter. If you confess you'd just get a confession. If you do not confess we will bring you to your home and go after your family members." And then the officer who yelled at me took out a notebook and wrote for a long while, before asking me to sign. I was very scared, so scared I was shaking, so I signed without reading the contents.

And then the prosecutor will cross-examine the defendant, followed by re-examination (if any) by the defence lawyer.

Example of cross-examination:

Prosecutor: The declaration in the last paragraph of the confession statement was handwritten by you, was it not?

Defendant: It was.

Prosecutor: The handwriting was neat, do you agree?

Defendant: I agree.

Prosecutor: If you were so scared that you were shaking, your handwriting would not have been so neat. Do you not agree?

Defendant: I don't agree. I became more calm when I wrote the declaration.

After the defendant and/or defence witnesses testifying, the Court will rule on whether the prosecution has proven beyond reasonable doubt that the confession was voluntarily made and accurately recorded. If so, the confession will become admissible evidence. If not, it will not be admitted as evidence and the Court will disregard it.

Prosecution case closes. The Court rules on whether there is a case to answer

After all prosecution witnesses give evidence and the Court rules on special issue (if any), prosecution will have finish adducing evidence. As such, prosecution case closes. The Court will at this stage rule on whether there is a case to answer. As per R v Galbraith, if there is inherent weakness or vagueness or inconsistency in prosecution evidence such that the Court comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, there is no case to answer and the defendant is acquitted immediately.

Defence case

If there is a case to answer, then defence case opens. The defendant may testify and he may also call defence witnesses to testify on the defence's version of the events. As the burden of proof rests upon the prosecution, the defendant is not obligated to give evidence. The advantage of the defendant giving evidence is that if the Court accepts his exculpatory version of events as truthful or possibly truthful, then he may be given the benefit of the doubt and acquitted. The downside of the defendant giving evidence is that he will be cross-examined by the prosecutor, and he may inadvertently admit to the offence in the witness box. He may also be found by the Court as not credible or not reliable.

If the defendant does choose to give evidence, from CPH Legal's experience in both defending and prosecuting, we have devised 4 "Golden Rules":

  1. Tell the truth. The truth is the most unshakable. Even if questioned persistently, the truth remains the same and unshaken.
  2. Listen carefully to the question, and answer audibly and clearly.
  3. When cross-examined, your answers can quite often be either "I agree", "I disagree", "I do not know", or "I do not remember". You should probably not explain "why" unless specifically asked. Sometimes, silence is gold.
  4. Pay attention to your posture. Sit straight, be respectful, calm, and composed.

Closing submissions

Defence lawyer will deliver closing submissions to the Court in which he would analyse the evidence before the Court and explain to the Court what the doubts are that should warrant an acquittal.

Verdict

The Court may deliver a verdict on the same day of it may adjourn verdict to a later date, perhaps a few weeks after. Upon a guilty verdict (conviction), defence lawyer will put forward mitigation submissions on your behalf. Depending on the severity of the offence, the Court may sentence immediately or may adjourn sentencing to a later hearing pending reports. If reports are called for, the Court may revoke bail and remand the defendant, or it may allow the defendant bail. Upon a not guilty verdict (acquittal), the defendant is free to leave.

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