PRACTICE DIRECTION – 9.4
CRIMINAL PROCEEDINGS IN THE DISTRICT COURT
PART I – SERVICE OF STATEMENTS AND DOCUMENTARY EVIDENCE
1. In all cases where the prosecution applies to transfer a case to the District Court from the magistracy, they shall on or before the date of transfer serve on each accused copies of the witness statements of those witnesses whom they propose to call at trial and copies of those documentary exhibits upon which they will seek to rely at trial.
2. The witness statements shall be served in a bundle or bundles such that the statements are firmly bound together and follow each other, with their pages consecutively numbered. Where witness statements have been translated, both versions shall be served and one shall follow the other in the bundle.
3. The bundle of witness statements shall be prefaced by an index numbering each witness consecutively and giving the name of the witness; a brief description of their role (such as victim of burglary “A”, eye witness of wounding “B”, interviewing officer of D4) and a page number for each statement they have made which is included in the bundle, similar to the example on the page following this Practice Direction.
4. The documentary exhibits shall be firmly bound together and follow each other with their pages consecutively numbered in a separate bundle or bundles.
5. The documentary exhibits shall be prefaced by an index, stating briefly the nature of the document and naming the witness by whom it will be produced (and/or those who will speak to it) and providing the page number of the exhibit in the bundle, similar to the example on the page following this Practice Direction.
6. Any further material upon which the prosecution seek to rely shall be served as additional evidence. It shall be accompanied by a form making clear that the material to which it relates is additional evidence. Such material shall be indexed and bear a page number running consecutively from the end of the relevant bundle.
7. Where translations accompany material, the service of the bundle shall not be delayed by awaiting certification if certification is intended. Such translations shall be served uncertified, but so soon as certified copies are available they shall be served on each accused and shall bear the page numbers of those pages previously uncertified.
8. In cases where the prosecution's papers are substantially ready to be served but further material is awaited, such as sworn bankers' affidavits or the statement of experts, the service of the bundle and transfer to the District Court should not be delayed, but in such cases a letter shall accompany service of the bundle disclosing the fact that it is intended to serve further material and stating briefly the nature of that material. Where material exists but not yet in its proper form, such as banking documents unsupported by a sworn banker's affidavit, it should be served at the same time as the main bundles with a letter stating what further material is expected to be served.
9. In cases where there is a considerable volume of banking documents, the bankers' affidavits and the exhibits thereto shall be served in a separate bundle, with consecutively numbered pages and be prefaced by an index setting out the name of the deponent, the bank in respect of which he speaks, the account numbers and the names of the account holders and the nature of the exhibits produced with the identifying number of each such exhibit married to its page number in the bundle, similar to the example on the page following this Practice Direction.
10. On the service of the original bundles the prosecution shall also serve a form stating whether or not unused materials exist and giving the name and contact numbers and address of the person to be contacted in respect of viewing any unused materials.
11. Any party to a case transferred to the District Court may apply to a judge of the District Court for an order amending, applying, varying, dispensing or otherwise in respect of any of these directions.
12. No failure to comply with these directions shall bar the transfer of a case to the District Court or the making of any orders in relation to the case.
PART II – PRE-TRIAL PROCEDURES
13. For sexual offence cases[1], unless the trial judge allows otherwise:
(a) the Secretary for Justice shall notify the accused of the following information not later than 10 days before the pre-trial review (if a pre-trial review has been ordered) or 21 days before the commencement of the trial (if no pre-trial review has been ordered) :
(i) whether a witness has requested the use of any of the following measures –
(1) a screen in giving evidence and, if so, the type of the screen requested (e.g. whether hiding from the accused, the public or both);
(2) a special passageway; and/or
(3) a support person; and
(ii) irrespective of whether the witness has made a request for the use of any of the above measures, whether the prosecution considers it appropriate to make such application(s), and if so the grounds for such consideration. If an application for the use of a screen is made, the prosecution should also indicate the type of the screen requested (e.g. whether hiding from the accused, the public or both); and
(b) the accused shall inform the Secretary of Justice within 7 days from receipt of the above information whether the accused objects to the application for the use of any of the measures and the grounds for the objection.
14. In criminal proceedings in the District Court wherein a pre-trial review has been ordered, the Secretary for Justice or an accused may each serve on the other a notice to admit facts relating to:
(a) the chain of evidence for exhibits;
(b) the commission of the offence;
(c) the admission of documentary exhibits; and
(d) any other matter specified.
15. The party to whom a notice under para.14 is addressed may serve a notice in reply stating any fact admitted. Such admission should be made in compliance with s.65C of the Criminal Procedure Ordinance, (Cap.221), and a copy of the notice should be served on the Registrar, District Court. In the absence of such notice, oral admissions may be made by or on behalf of either party to the judge at the pre-trial review.
16. A written statement proposed to be tendered in evidence in terms of s.65B of the Criminal Procedure Ordinance (Cap.221), should be served by the party so proposing before the pre-trial review, but should not be served on the Registrar, District Court unless it is agreed by the parties that there is no objection to such statement.
17. At the pre-trial review, counsel or solicitors will inform the trial judge of the following:
(a) the pleas to be tendered at trial;
(b) the nature (but not the substance) of any additional evidence for the prosecution;
(c) details of any admitted facts not already covered by a notice in reply in terms of para.15 hereof;
(d) which witnesses the prosecution intends to call, and which the defence wishes to be made available;
(e) whether there will be objection to the admissibility of prosecution evidence and how long such will take to hear;
(f) if expert testimony is to be called;
(g) trial length estimates and matters relevant thereto;
(h) whether submissions are proposed as to:
(i) severance of an accused or a charge;
(ii) quashing a charge;
(iii) provision of further particulars of a charge;
(iv) any other issue preliminary to trial;(i) any point of law which may arise at trial, and any authority to be relied upon; and
(j) which statements served under para.16 hereof are not objected to.
18. In addition to the above, for sexual offence cases, the Secretary for Justice shall at the pre-trial review furnish the trial judge with the information mentioned in paragraph 13(a) and (b) above.
19. The judge conducting the pre-trial review may give directions for the further conduct of the proceedings. If the District Court approves the request for the use of a special passageway under paragraph 13, the routing would generally follow the standard arrangements designated by the Judiciary Administration in respect of the court building concerned, subject to any modifications as the Judiciary Administration may see fit on a case-by-case basis.
20. A represented accused has a right to attend the pre-trial review, but may waive that right if he wishes. If an accused who wishes to attend is in custody, early notice shall be given to the Registrar, District Court so that arrangements may be made.
21. In criminal proceedings where no pre-trial review has been ordered, the Secretary for Justice shall furnish the trial judge with the information mentioned in paragraph 13(a) and (b) above not later than 7 days before the commencement of the trial.
PART III – THE LANGUAGE USED IN A TRIAL
22. An accused should elect the language used in the trial during the transfer proceedings at the Magistrate Court or the listing proceedings at the District Court. Translation of documentary exhibits may be dispensed with depending on the election.
23. An accused should apply in writing to the District Court, not less than 28 days before the trial, for any change of election.
24. This Practice Direction supersedes the previous Practice Direction 9.4 dated 10 June 2016.
25. This Practice Direction shall take effect on 20 April 2018.
Dated this 19th day of March 2018.
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(Geoffrey Ma) |
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Chief Justice |
[1] Sexual offence cases include those involving the offence of (i) rape; (ii) incest; (iii) buggery; (iv) gross indecency; (v) indecent assault; (vi) indecent conduct; (vii) unlawful sexual act; (viii) unlawful sexual intercourse; (ix) procuring another person under the age of 18 for making pornography; (x) keeping/managing vice establishment; and (xi) controlling/living on earnings of prostitution; and (xii) causing prostitution.