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

控方完結傳召控方證人後,在有特別事項的案件,裁判法院會進行 「交替程序」,會裁定就特別事項而言是否表證成立,表證成立的話,被告人有權到證人台就宣誓並就特別事項作供,講述他的認罪口供是不自願下作出的,亦有權傳召辯方證人就特別事項作供。

程序上,被告人或辯方證人作供與其他證人類似,會是由己方律師即辯方律師先進行主問,然後被檢控官盤問,最後可能由己方的辯方律師覆問。

被告人就特別事項作供,例子如下:

主問: 「在現場有警察到來,之後發生什麼事?」

被告:「有3名便衣警察行近我,其中一人用粗口罵我是死飛仔, 之後另一人拉我到花槽旁同我講 『好小事姐,認左佢都係罰款,唔認就帶你返屋企搜屋搞埋你屋企人』 之後罵我的警察拿了一本簿出來寫,寫了好耐,之後就叫我簽名,我好驚, 驚到個人震晒,所以無睇過就簽左名。」

之後,控方會盤問被告,然後就是覆問 (如有)。

盤問例子:

盤問:「認罪口供最後一段聲明,由你本人在現場手寫的,對嗎?」

被告:「對。」

盤問:「裡面的字體工整,你同意嗎?」

被告:「同意。」

盤問:「當時如你真的驚到震,字體不可能這麼工整。同意嗎?」

被告:「不同意,寫聲明時,我已經稍微冷靜了。」

完成作供後,法庭會裁定控方是否已經毫無合理疑點地證明認罪口供時自願並準確記錄的,如是的話,口供可呈堂。如否的話,認罪口供將不能呈堂而法庭亦不予以考慮。

控方案情完結,裁定表證成立或不成立

所有控方證人作供完畢,以及特別事項(如有)有裁決後,控方已完成舉證。在這個階段,法官會裁定案件是否表證成立。根據R v Galbraith案的原則,法官需要考慮的是如控方所提出的證據有根本弱點,模糊,或自相矛盾,而即使推至最高點, 一個妥當地受指引的陪審團都不能將被告定罪的話, 則是為表證不成立,被告會無罪釋放。反之,則會表證成立。

辯方案情

表證成立的話,案件進入辯方案情階段,即辯方可考慮傳召證人,或被告人本人出庭作供,講述辯方版本的事發經過。舉證責任在控方,因此被告人沒有責任作供,但被告作供的好處,是可以將他的版本講述給法庭,如法庭接納其講法是真實或有可能是真實的話,可將疑點歸於被告而無罪釋放。壞處則是被告人同樣要接受盤問,有可能被法庭裁定為不可信不可靠,或在作供時自己承認了犯罪的事發經過。

如被告人選擇作供的話,CPH Legal律師團隊根據多年的刑事審訊經驗,包括檢控及抗辯的經驗,總結了四大黃金規則:

  1. 講事實,事實往往是難以被動搖的,無論多番追問,事實依然屹立不倒
  2. 小心聽問題,大聲及清晰回答
  3. 在盤問時,你的答案往往可以用 「同意」 「不同意」 「不知道」 「不記得」 回答。除非檢控官特別問你為什麼,否則無需主動解釋,避免講多錯多
  4. 留意自己坐姿及神態,回答問題時從容自若,不卑不亢

結案陳詞

辯方律師會向法庭進行結案陳詞 (Closing Submission),分析法庭所面對的證據,有哪些疑點而法庭應當判以無罪釋放。

裁決

法庭有機會即日裁決 (Verdict),也可能押後到數星期後裁決罪名是否成立。 如罪名成立的話,律師會為你求情,視乎案件嚴重性,法庭可即時判刑或押後判刑並索取報告。如索取報告的話,法庭有機會撤回保釋,亦有機會允許被告繼續保釋。罪名不成立的話,被告立即無罪釋放。

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