PRACTICE DIRECTION – 9.3
CRIMINAL PROCEEDINGS IN THE COURT OF FIRST INSTANCE
Part 1 – General
1.1 Application
1.1.1 Subject to §1.1.2 below, this Practice Direction applies to all criminal cases committed to the Court of First Instance by a magistrate for trial or sentence.
1.1.2 For the avoidance of doubt, this Practice Direction does not apply to complex commercial crime cases covered by Practice Direction 9.8, which continues to apply to them.
1.1.3 This Practice Direction supplements Practice Directions 9.1, 9.5 and 9.7 and supersedes Practice Directions 7.2 and 9.3, which shall cease to have effect when this Practice Direction comes into force.
1.2 Judges responsible for listing and procedural matters
1.2.1 A Judge has been designated as the Criminal Listing Judge (“the Criminal Listing Judge”) who is responsible for overseeing listing and procedural matters for criminal cases in the Court of First Instance generally. With a view to efficiently and expeditiously managing cases and to ensuring compliance with this Practice Direction, the Criminal Listing Judge may issue directions on listing or practice and procedure with general application as may be required.
1.2.2 A judge has been designated as the Judge in charge of the Expedited List (“the Expedited List Judge”) who is responsible for the listing and procedural matters arising from that List. Cases set down in the Expedited List may, however, be heard either by the Expedited List Judge or another judge who is available to hear the case(s) so listed.
1.2.3 A Master of the High Court has been designated as the Criminal Listing Master (“the Criminal Listing Master”) who will assist the Criminal Listing Judge and the Expedited List Judge with listing and procedural matters of criminal cases covered by this Practice Direction.
1.2.4 During their absence, the Chief Judge of the High Court may designate another Judge or Master to act as the Criminal Listing Judge, the Expedited List Judge or the Criminal Listing Master, as the case may be, to carry out their functions for the time being.
1.3 Fixture List and Expedited List
1.3.1 Cases committed for trial are listed either in the Fixture List or the Expedited List.
1.3.2 Unless otherwise directed by the Criminal Listing Judge, whether on an application made or not, all cases committed for trial not falling within the Expedited List as provided for under §1.3.3 below shall be listed in the Fixture List.
1.3.3 Cases committed for trial satisfying the following criteria shall be listed in the Expedited List :
(1) the case has only one defendant;
(2) the defendant is on legal aid;
(3) the case does not involve :
(a) any homicide offence;
(b) any sexual offence;
(c) any vulnerable witness;
(d) any overseas witness;
(e) any use of interpretation service other than that of Chinese and English;
(f) any evidence taken via Mutual Legal Assistance, Letters of Request, or the live television link; or
(g) more than 5 civilian witnesses; and
(4) the estimated length of the trial does not exceed 10 working days.
1.3.4 The above criteria may be revised by the Criminal Listing Judge as and when necessary.
1.3.5 As is the current practice, early trial dates will be given, as far as possible, to cases the nature or circumstances of which particularly requires expeditious disposal, e.g. those involving vulnerable witnesses or accomplice witnesses.
1.3.6 Except for those cases involving the offences/matters listed in §§1.3.3(3)(a)-(g), when necessary, and with a view to making the best use of judicial time, the Criminal Listing Judge may direct that a case initially listed in the Fixture List be moved to the Expedited List and vice versa. If a party considers that there is genuine difficulty for the case to be so moved, a written representation with detailed reasons given should be made to the Criminal Listing Judge, copied to the other parties, within 3 days after the notification for the re-listing is given.
1.4 Milestone dates
1.4.1 For the purpose of this Practice Direction, the following are milestone dates which cannot be vacated or adjourned unless justified on sufficient grounds with the approval of the court :
(1) Plea and Sentence Hearing;[1]
(2) Case Management Hearing;[2]
(3) Pre-trial Review;[3]
(4) trial; and
(5) any other milestone date as may be set by the court.
1.4.2 An application to vacate or adjourn a milestone date must be made :
(1) in writing setting out all the grounds in support and, where applicable, attaching all the documents relied upon; and
(2) in good time before the milestone date, and in any event, not less than 7 days before the milestone date.
1.4.3 Unless otherwise justified, which should be rare, the court will not entertain an application to vacate or adjourn a milestone date which is only made on the date in question.
1.5 Questionnaires, standard procedural timetables and forms
1.5.1 The questionnaires, standard procedural timetables and forms in the Appendices shall be used where applicable with such variations as the circumstances of the particular case may require.[4]
1.6 Extension of time
1.6.1 At any stage of the proceedings, where, because of the particular circumstances of the case, such as complexity, and despite every reasonable effort having been made, there is genuine difficulty in complying with the timelines set out in the applicable standard procedural timetable or any revised timetable, a party may apply to the Criminal Listing Judge for an extension of time. The application should be made once it is clear that the deadline(s) cannot be met.
1.6.2 The application must be made in writing, setting out all the grounds in support and, where applicable, attaching all the documents relied upon. If the application is by consent or is not opposed, the same should be stated in the written application.
1.6.3 The extension sought should be realistic and reasonable so as to avoid any application for further extensions.
Part 2 – Objective and case management
2.1 Objective
2.1.1 The primary imperative of criminal justice is that justice must be done and is seen to be done : the innocent is acquitted and the guilty is convicted after the due process of law.
2.1.2 The due process of law is embodied in :
(1) Article 86 of the Basic Law, which ensures that the principle of trial by jury (insofar as criminal trials in the Court of First Instance are concerned) shall be maintained;
(2) Article 87 of the Basic Law, which guarantees the right to a fair trial without delay under the principle of presumed innocence; and
(3) Article 11 of the Hong Kong Bill of Rights which details the different facets of a defendant’s right to a fair trial.
2.1.3 In giving effect to the due process of law, the court exercises its jurisdiction in case management with a view to fairly, efficiently and expeditiously managing the progress of the case from beginning to conclusion. This Practice Direction achieves this primary objective by :
(1) re-iterating the court’s jurisdiction in case management;
(2) setting out the major procedural steps and timetables throughout the chronological process of criminal cases from committal to trial or sentence; and
(3) requiring the parties to perform their duty to the court in strict compliance with this Practice Direction and all case management directions as the court may give.
2.2 Case management by the court
2.2.1 Active, hands on, case management by the court is essential to good case preparation, a key to a fair and expeditious criminal process. When exercising its case management powers, the court ensures that :
(1) there is a sensible and effective use of time by the parties, both in and outside court, to properly and efficiently prepare the case for trial by judicial management and control;
(2) all steps necessary for the proper preparation of a case for trial are reasonably timetabled so that the progress of the case can be monitored;
(3) the progress of the case is monitored by reference to the procedural timetables and milestone dates;
(4) all steps necessary for the proper preparation of a case have been taken within a reasonable time before trial;
(5) the number of ineffectual hearings or adjournments is reduced;
(6) a case, once ready for trial, can be brought to trial as soon as practicable, subject to the actual diary position of the court at the time; and
(7) judicial time and resources are best used, having regard to the needs of the case before the court and other cases.
2.2.2 In exercising its case management powers, the court always bears in mind the imperative of criminal justice. The court will take into account the overall circumstances of the case, including:
(1) the nature and gravity of the alleged offence;
(2) the complexity of the issues involved;
(3) the severity of the consequences for the defendant and the impact of the proceedings on those affected by the alleged offence; and
(4) the difficulty that an unrepresented defendant may have in conducting the trial.
2.3 Duty of the parties
2.3.1 The parties must understand that active, hands on, case management by the court is and will remain part of the normal proceedings from committal to conclusion. It is their duty to assist the court in managing the case. In order to discharge such duty, the parties should not warehouse the case between hearings so that little is done until the next hearing is imminent. They should actively prepare the case for trial without constant recourse to the court. When the court gives case management directions, they should fully and faithfully follow them.
2.3.2 Without prejudice to §2.3.1, the parties should :
(1) prepare and conduct their case in full and strict compliance with this Practice Direction and all case management directions and procedural timetables as laid down by the court;
(2) inform the court and all the other parties to the case forthwith of any failure to comply with any case management direction or procedural timetable;
(3) seek the court’s directions to address or remedy such failure; and
(4) provide the court with all necessary information that is required to enable the court to make a case management direction, devise a procedural timetable and to set a milestone date that suits the needs of the case.
2.4 Effect of non-compliance
2.4.1 Non-compliance with this Practice Direction, a case management direction or the procedural timetable is a serious matter, the court will not take it lightly. Depending on the actual circumstances, it may affect the conduct of the prosecution or the defence. It may have an impact on costs. The court may require the legal representative who is in default to appear in court to provide the reasons for the non-compliance. When the non-compliance involves failure, neglect or dereliction of duty on the part of the lawyer having conduct of the case, the court may refer the matter to the Department of Justice, the Director of Legal Aid and the relevant professional body for further action.
Part 3 – Plea and Sentence
3.1 Cases committed for sentence
3.1.1 Where a case is committed for sentence, the following procedure shall apply.
3.1.2 Within 28 days after the committal for sentence is ordered, the parties shall lodge with the court an agreed paginated Plea and Sentence Bundle, containing :
(1) the charge sheet;
(2) notes of committal proceedings;
(3) “Charge(s) Committed for Sentence”;
(4) the summary of facts;
(5) an antecedent statement of the defendant and his criminal record, if any;
(6) an exhibits disposal list, including any forfeiture application to be made by the prosecution (e.g. in respect of the money seized from the defendant) and a written confirmation from the defence as to whether the application will be contested, and, where the application is contested, a short statement setting out a summary of the issues to be determined at the hearing; the number and identity of the witnesses to be called by the parties; the estimated length of the hearing; and any other proposed directions to be sought from the court;
(7) a written confirmation as to whether a Newton hearing is required, and if so, a short statement setting out a summary of the issues to be determined at the hearing; the number and identity of the witnesses to be called by the parties; the estimated length of the hearing; and any other proposed directions to be sought from the court;
(8) a written confirmation as to whether there are other matters relating to sentence which need to be dealt with in chambers; and
(9) a set of the sentencing authorities on which both parties seek to rely.
3.1.3 Apart from the agreed paginated Plea and Sentence Bundle, where there are additional particulars and/or sentencing authorities which a party intends to submit to the sentencing judge, the party shall, within 35 days after the committal for sentence is ordered, lodge the same with the court, copied to the other parties.
3.1.4 The court will then fix a Plea and Sentence Hearing at which the court will confirm the plea with the defendant; hold the Newton hearing or Sivan hearing, where applicable; hear mitigation; pass sentence on the defendant; and deal with the exhibits disposal/forfeiture application.
3.1.5 The court may, if necessary, give further directions in writing or hold a directions hearing before the Plea and Sentence Hearing.
3.2 Pleading guilty after committal and before trial
3.2.1 In other cases where the defendant intends to plead guilty after committal but before trial, the legal representative of the defendant shall forthwith file with the court and serve on the prosecution a Request for a Plea and Sentence Hearing,[5] giving notice of the defendant’s intention and applying for a Plea and Sentence Hearing.
3.2.2 Upon receipt of the Request, the scheduled trial dates will be vacated, and the parties shall, within 28 days of the filing of the Request, lodge with the court an agreed paginated Plea and Sentence Bundle as provided for in §3.1.2 above. The procedure in §§3.1.3 to 3.1.5 above shall also apply.
Part 4 – Lodging Committal Bundle, etc.
4.1 Lodging Paginated Committal Bundle
4.1.1 For cases committed for trial, within 14 days after filing of the indictment or any further time as may be extended by the Criminal Listing Judge, the prosecution shall lodge with the Magistrates’ Court and, on the same day, serve on the defendant’s legal representative or the defendant himself if the defendant is acting in person, a Paginated Committal Bundle[6], containing copies of :
(1) the indictment;
(2) the charge sheet;
(3) notes of the committal proceedings;
(4) a list of the prosecution witnesses;
(5) each of the statements of the prosecution witnesses;
(6) a list of exhibits; and
(7) each of the documentary exhibits.
4.1.2 An application to extend the time for lodging the Paginated Committal Bundle shall be made promptly to the Criminal Listing Judge as soon as it becomes apparent that the time limit of 14 days cannot be met. The application should be by way of a letter which should fully state the grounds in support. The time estimate for the extension to be sought should be realistic and reasonable so as to avoid any application for further extensions.
4.1.3 Within 21 days after lodging the Paginated Committal Bundle and where the defence has confirmed that the case is required to be listed for trial, the prosecution should, based on the criteria set out in §§1.3.2 and 1.3.3 and after confirming the same with the defence, inform the court in writing as to which list the case belongs.
4.1.4 Where a party considers that there are special circumstances which render it desirable to have the case listed in the Fixture List or the Expedited List despite the criteria set out in §1.3.3 above, the party should seek to confirm with the other parties as to whether they are agreeable to have the case so listed. If there is a consensus, that party shall, within 21 days after the Paginated Committal Bundle is lodged and served, inform the court of the same and provide the reasons for seeking such listing. The matter will then be dealt with by the Criminal Listing Judge.
4.1.5 Where there is no agreement, the party seeking to have the case listed in a particular list shall, within 21 days after the Paginated Committal Bundle is lodged and served, make the application with detailed reasons to the court, copied to the other parties.
4.1.6 Where there is such an application, any party opposing it shall, within 7 days after the application is made, provide the court with the detailed reasons for the objection.
4.1.7 Parties should also seek to reach an agreement as to the estimated length of the trial. Where there is agreement, the estimated length should be provided to the court in the same letter. Where there is no agreement as to the estimated length of the trial, each party shall, within 21 days after the Paginated Committal Bundle is lodged and served, inform the court, with detailed reasons given, of its own estimated length of the trial.
4.1.8 For those cases in which the parties fail to reach an agreement as to the estimated length of the trial and/or as to which list the case should go, the matter will be dealt with by the Criminal Listing Judge with or without a further hearing.
4.2 Providing unused materials
4.2.1 The prosecution has a continuing duty of disclosure and should, as soon as practicable, disclose to the defence any unused materials known and available to the prosecution at the time.
4.2.2 In respect of a request for disclosure from the defence, the prosecution should respond to it expeditiously.
4.2.3 In any event, within 14 days after committal is ordered, the prosecution shall provide to the defence a list of unused materials known and available to the prosecution at the time, if such has not yet been served.
Part 5 – Procedure for the Fixture List
5.1 Listing and Preparation before the Case Management Hearing
5.1.1 Once committal is ordered, the parties should start actively preparing the case so as to assist the court in giving appropriate case management directions and procedural timetable at the Case Management Hearing.
5.1.2 Without prejudice to §5.1.1 above, the prosecution should ensure that all matters which may affect the conduct of the case are attended to without delay.
5.1.3 Likewise, the legal representative of the defendant should take instructions from the defendant once committal is ordered and in any event must do so within 14 days after the service of the Paginated Committal Bundle. More specifically, instructions should be taken from the defendant about his plea :
(1) If he is going to change his plea to a guilty plea, the defendant’s legal representative should forthwith take the steps as set out in §§3.2.1 and 3.2.2. Upon receiving the Request for a Plea and Sentence Hearing, the court will fix a Plea and Sentence Hearing.
(2) If he maintains his not guilty plea, the defendant’s legal representative should forthwith notify the court, and in any event not later than 14 days after the service of the Paginated Committal Bundle, by way of a letter copied to the prosecution, to confirm that the case is required to be listed for trial.
5.1.4 Within 21 days after receiving the defence’s request for listing, the Criminal Listing Judge will list the case for trial with trial dates given and will assign the case to a Judge (“the Trial Judge”). Written notification of such will be sent to the prosecution and the defence.
5.1.5 For those defendants who are acting in person :
(1) they are similarly required to notify the court, by filing the Request for Listing/Plea[7] with a copy sent to the Department of Justice, within 14 days after the service of the Paginated Committal Bundle, as to whether there is any change to their not guilty pleas entered at the committal stage;[8]
(2) if the request is not received by the court or where the defendant confirms that he is maintaining his not guilty plea, a mention hearing will be arranged for the purpose of listing the case; and
(3) if the defendant confirms that he is going to plead guilty, a Plea and Sentence Hearing will be arranged.
5.2 Filing the Case Management Questionnaire
5.2.1 For the purpose of the Case Management Hearing, the defendant’s legal representative should obtain from the defendant instructions with a view to identifying the real issues involved and informing the court of the matters which can be dealt with by way of admitted facts or by way of admission of statements under section 65C or section 65B of the Criminal Procedure Ordinance,[9] as the case may be.
5.2.2 Within 42 days after the lodging of the Paginated Committal Bundle, the parties shall file with the court and serve on the other side the duly completed Case Management Questionnaire (Fixture List).[10]
5.2.3 The parties must provide all the information requested in the Questionnaire, which will assist the court in making case management directions that suit the specific needs of the case. They must do so with care and on the part of the defence, after instructions have been taken from the defendant.
5.3 Case Management Hearing
5.3.1 A Case Management Hearing will be fixed before :
(1) the Criminal Listing Judge; or
(2) the Trial Judge
not earlier than 14 days after the filing of the Case Management Questionnaire (Fixture List).
5.3.2 Not less than 7 days before the Case Management Hearing, the prosecution and the defence shall file with the court a set of agreed proposed directions, including any suggested revisions to the procedural timetable as set out in the Standard Procedural Timetable (Fixture List)[11], or failing which, their respective lists of proposed directions/revisions, to be sought from the court.
5.3.3 The Case Management Hearing shall take place in chambers. The defendant shall be present at the Case Management Hearing. Both prosecuting counsel and defence counsel who have prepared the Case Management Questionnaire (Fixture List) shall attend the Hearing.
5.3.4 The parties should draw to the attention of the court the developments on matters subsequent to the filing of the Case Management Questionnaire (Fixture List) which are pertinent to the conduct and management of the case.
5.3.5 The court will give such directions as may be necessary for the proper and effective disposal of the case, including imposing a procedural timetable for the preparation of the case. Unless directed otherwise by the court, the Standard Procedural Timetable (Fixture List) will be adopted. Particular attention should be drawn to the following specific matters.
(A) Admission of facts
5.3.6 If the prosecution intends to invoke section 65C of the Criminal Procedure Ordinance, the following shall apply :
(1) Within 21 days after lodging the Paginated Committal Bundle or such time as the court may direct, the prosecution shall file with the court and serve on the defendant or his legal representative a notice to admit facts relating to :
(a) the chain of evidence regarding the seizure and handling of the exhibits;
(b) the commission of any of the relevant acts, if this is not to be contested by the defendant;
(c) the admission of documentary exhibits; and
(d) any other matter as specified in the notice.
(2) The legal representative acting for the defendant shall forthwith obtain instructions in relation to the matter, and shall, within 21 days after the notice to admit facts is served or such time as may be allowed by the court, file with the court and serve on the prosecution a notice in reply stating which facts are admitted.
(3) Any admission should comply with section 65C of the Criminal Procedure Ordinance which includes the right to seek the leave of the court to withdraw any such admission.
(B) Admission of witness statement
5.3.7 If the prosecution intends to invoke section 65B of the Criminal Procedure Ordinance, the following shall apply :
(1) Within 21 days after lodging the Paginated Committal Bundle or such time as the court may direct, the prosecution shall file with the court and serve on the defendant or his legal representative a notice informing that the prosecution intends to tender the written statement of a witness pursuant to section 65B of the Criminal Procedure Ordinance without calling that witness to give evidence.
(2) If objection is made to a statement being tendered in evidence, the defendant’s legal representative shall, within 21 days after the notice is served or such time as may be allowed by the court, file with the court and serve on the prosecution his notice of objection.
(C) Expert evidence
5.3.8 If the prosecution intends to adduce expert evidence at trial, the expert report should, as far as possible, be filed with the court and served on the defence before committal is sought.
5.3.9 If no expert report has been filed at the committal stage and where expert evidence is intended to be adduced at trial, the parties should endeavour to adhere to the timeframe as set out in the Standard Procedural Timetable (Fixture List) for the filing and service of expert reports. Where there is genuine difficulty in complying with the timetable, the matter should immediately be brought to the attention of the Criminal Listing Judge, providing detailed reasons and the suggested revisions to the timetable.
(D) Preliminary question of law
5.3.10 If any preliminary question of law arises, the parties should forthwith seek the court’s directions as to how and when that question is to be disposed of.
(E) Unused materials not yet disclosed
5.3.11 The court will direct the prosecution to provide to the defence a list of any unused materials which have not yet been disclosed within 14 days after the Case Management Hearing.
5.4 Further case management directions
5.4.1 Where necessary, the court may, on its own motion or on application by any party in writing, give further case management directions in writing without an oral hearing; or to hold a further Case Management Hearing, which should be rare except in complex cases.
5.5 Pre-trial Review
5.5.1 If necessary, the court may fix a Pre-trial Review, which is usually about 6 to 8 weeks before trial.
5.5.2 Not less than 14 days before the Pre-trial Review, the parties should file with the court an agreed paginated PTR Bundle, enclosing :
(1) a copy of the admitted facts under section 65C of the Criminal Procedure Ordinance and/or a list of admission of witness statements under section 65B of the Criminal Procedure Ordinance, where applicable;
(2) a duly completed PTR Questionnaire (Fixture List)[12]; and
(3) any proposed directions to be sought from the court.
5.5.3 The Pre-trial Review will take place in chambers before the Trial Judge. The defendant shall be present at the Pre-trial Review unless his legal representative informs the court that he does not wish to attend and his attendance is excused by the court. Trial counsel shall attend the Pre-trial Review.
5.5.4 The Trial Judge may give further directions in order to secure the proper and efficient trial of the case as scheduled.
5.6 Certificate of Readiness for Trial
5.6.1 The court will direct the parties to file with the court a Certificate of Readiness for Trial[13] within 7 days after the completion of all preparatory steps as provided for in the procedural timetable to confirm that, based on the available materials, information and instructions known to the party at the time, the case is ready for trial.
5.6.2 Filing of the Certificate means that, unless there is any unforeseen and material change in circumstances, there is no more outstanding procedural matter and that the case is ready for trial, not only at the scheduled trial dates but also at an earlier time as the court may direct.[14]
5.6.3 Where, after filing the certificate, there is any new significant development or material change in circumstances which renders the case not ready for trial, the matter should immediately be brought to the attention of the Criminal Listing Judge for directions.
Part 6 – Procedure for the Expedited List
6.1 Listing and Procedural Timetable
6.1.1 Within 14 days after the service of the Paginated Committal Bundle, the defendant’s legal representative should attend to the matters mentioned at§5.1.3, in particular, notify the court whether it is confirmed that the case is required to be listed for trial. Where a trial is required, the parties should follow the procedure set out in §§4.1.3 to 4.1.7.
6.1.2 If the defendant maintains his not guilty plea, the Expedited List Judge will, within 21 days after receiving the defence’s request for listing, list the case for trial. Written notification of the month in which the case is to be tried will be given to the prosecution and the defence.
6.1.3 Unless otherwise directed by the court, the parties shall follow and complete all the applicable procedural steps as set out in the Standard Procedural Timetable (Expedited List).[15]
6.1.4 If either the prosecution or the defence considers that any of the procedural steps or time limits laid down in the Standard Procedural Timetable (Expedited List) needs to be revised or any further case management direction is required :
(1) the parties should first endeavour to agree among themselves the proposed directions to be sought and make the joint application to the court, or;
(2) failing agreement, make their respective applications to the court within 42 days after lodging of the Paginated Committal Bundle.
6.1.5 The court will then give further case management directions in writing or may, if necessary, hold a directions hearing before the Case Management Hearing.
6.2 Case Management Hearing
6.2.1 Within 42 days after lodging of the Paginated Committal Bundle, the parties will be informed of the hearing date of the Case Management Hearing which is to be conducted before the Expedited List Judge at a date not earlier than 6 weeks after lodging of the Committal Bundle.
6.2.2 7 days before the Case Management Hearing, the parties are to complete and file the Case Management Questionnaire (Expedited List)[16] so as to inform the court of the progress made in respect of the preparation of the case.
6.2.3 The Case Management Hearing will take place in chambers. The defendant in each of the cases listed for hearing shall appear. Trial counsel for each of the cases listed shall also appear. Trial counsel shall endeavour to agree upon the order of the trials for the cases set down for the month in question. Failing agreement, the Expedited List Judge shall determine the order of the trials.
6.2.4 Unless otherwise ordered by the court, no further Case Management Hearing will be fixed before trial. However, when the need arises, the parties shall, without delay, seek an urgent appointment with the Expedited List Judge for such a hearing by giving two clear days’ written notice to the Judge and the other party. The Judge may give such directions as he thinks fit at the hearing. If the Judge considers it unnecessary to hold such a hearing, he may give such directions in writing as he thinks fit.
6.3 Certificate of Readiness for Trial
6.3.1 Within 7 days after the Case Management Hearing, the parties shall file with the court a Certificate of Readiness for Trial, confirming that, based on the available materials, information and instructions known to the party at the time, all the preparatory steps have been duly completed; that there is no outstanding procedural matter; and that, unless there is any unforeseen and material change in circumstances, the case is ready for trial, not only in the month originally scheduled but also within the 2 weeks immediately preceding that month.
6.3.2 Where, after filing the certificate, there is any new significant development or material change in circumstances which renders the case not ready for trial, the matter should immediately be brought to the attention of the Criminal Listing Judge for directions.
6.4 Notice to witnesses
6.4.1 It shall be the duty of the parties to give notice and warn their witnesses that their attendance at the trial may be required at any time during the month as well as in the 2 weeks immediately preceding that month in which the case has been set down and that they should be able to attend the trial at 24 hours’ notice.
6.5 Cases not reached in the month
6.5.1 A case in the Expedited List that has been set down in a month which cannot be reached within that month or the trial of which is adjourned shall automatically be set down for the following month. Unless otherwise directed by the court, no further Case Management Hearing will be held before the trial.
6.6 Discharge of legal aid
6.6.1 For the avoidance of doubt, unless otherwise directed by the Expedited List Judge or unless an application made by the defence to have the case transferred to the Fixture List has been granted by the Criminal Listing Judge, a case listed in the Expedited List as aforesaid shall remain so listed even if at any time legal aid for the defendant has been discharged.
Part 7 – Cases brought forward for Trial
7.1 Cases that may be brought forward for trial
7.1.1 As the Criminal Listing Judge may direct, a case initially listed in the Fixture List may be listed in the Expedited List for trial if it satisfies the criteria set out in the Schedule.[17]
7.1.2 Before the court makes a direction under §7.1.1 above, the court will give reasonable notice to the parties (usually not less than 14 days) of the intended re-listing and the new trial dates.
7.1.3 As the Criminal Listing Judge or the Expedited List Judge may direct, a case initially listed in the Expedited List for hearing in a particular month may be brought forward for trial in the 2 weeks immediately preceding that month, either before the Expedited List Judge or before another judge. Usually, notice of not less than 14 days will be given to the parties before the case is so listed.
7.1.4 If any party considers that the case cannot be heard on the rescheduled dates as notified, that party should, within 3 days after the notification is made, bring the matter to the attention of the Criminal Listing Judge for directions.
7.2 Notice to witnesses
7.2.1 It shall be the duty of the parties to inform their witnesses of the new trial dates and to secure their attendance.
Part 8 – Antecedent Statement
8.1 For all the cases committed to the Court of First Instance, a proof of evidence (antecedent statement) in respect of the defendant should be prepared by the law enforcement officer. The statement shall contain particulars of the defendant’s age, education and employment, the date of arrest, and the date (if known) of the last discharge from prison or other place of custody. If known, it may also contain a short and concise statement as to the defendant’s domestic and family circumstances.
8.2 The proof may contain statements of information or belief with the sources and grounds thereof. The presiding judge will decide what weight, if any, to attach to such statements or whether to call further evidence.
8.3 The antecedent statement and the defendant’s previous criminal convictions, if any, are to be filed and served in accordance with the procedural timetables. Where the defendant pleads guilty, the documents should be included in the paginated Plea and Sentence Bundle as set out in §3.1.2.
Part 9 – Application for the use of a screen
9.1 For sexual offence cases[18], unless the Criminal Listing Judge or the Expedited List Judge or the trial judge allows otherwise :
(1) the prosecution shall notify the defendant of the following information not later than 10 days before the Case Management Hearing :
(a) whether any witness has requested for the use of any of the following measures –
(i) a screen when giving evidence and, if so, the type of the screen requested (e.g. whether hiding from the defendant, the public or both);
(ii) a special passageway; and/or
(iii) a support person; and
(b) 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 defendant, the public or both); and
(2) the defence shall inform the prosecution within 7 days after the receipt of the above information whether the defendant objects to the application for the use of any of the measures and the grounds for the objection.
9.2 The prosecution’s notification and the defence’s reply shall be copied to the court. Where there is no objection from the defence, the application may be granted without any hearing. If the application is opposed, the matter may be heard either at the Case Management Hearing or at another time as directed by the court.
9.3 If the court approves the request for the use of a special passageway under this Part, 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.
Part 10 – Effective Date and Transitional Arrangements
10.1 This Practice Direction supersedes the previous Practice Direction 9.3 dated 8 May 2017.
10.2 This Practice Direction shall take effect on 20 April 2018.
10.3 For the avoidance of doubt, this Practice Direction does not apply to cases which are committed to the Court of First Instance for trial or for sentence before 12 June 2017. For such cases, the former listing and the related arrangements continue to apply.
Dated this 19th day of March 2018.
(Geoffrey Ma) Chief Justice
Schedule
For the purpose of §7.1.1 of this Practice Direction, the criteria are as follows:
(1) the case has no more than 2 defendants;
(2) the defendants are on legal aid;
(3) the estimated length of the trial does not exceed 10 working days;
(4) the indictment does not involve any of the offences or matters listed in §§1.3.3(3)(a)-(g); and
(5) a Certificate of Readiness for Trial has already been filed with the court.
[1] See Part 3 below.
[2] See §§5.3 and 6.2 below.
[3] See §5.5 below.
[4] The major steps for case preparation set out in the Standard Procedural Timetable (Fixture List) and the Standard Procedural Timetable (Expedited List) are respectively summarized in Flow Chart I and Flow Chart II attached to this Practice Direction.
[5] Appendix A.
[6] The Paginated Committal Bundle refers to the bundle containing the depositions and the documents transmitted to the Registrar after committal.
[7] Appendix B.
[8] The Request for Listing/Plea is to be given to the defendant by the Committal Clerk of Eastern Magistrates’ Court on the day of the committal.
[9] Cap 221.
[10] Appendix C1.
[11] Appendix D1.
[12] Appendix E.
[13] Appendix F.
[14] See Part 7 below.
[15] Appendix D2.
[16] Appendix C2.
[17] The Criminal Listing Judge may in the future revise the criteria in the Schedule if and when necessary.
[18] Sexual offence cases include, but not limited to, 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 a vice establishment; (xi) controlling/living on earnings of prostitution; and (xii) causing prostitution.