PRACTICE DIRECTION – 9.6
MAGISTRACY APPEALS IN THE COURT OF FIRST INSTANCE
PART I – GENERAL
1. This Practice Direction is introduced in order to make the best use of judicial time and resources with a view to expediting the hearing of magistracy appeals as far as practicable. It applies to all appeals lodged in accordance with section 114 of the Magistrates Ordinance, Cap.227 (the “Ordinance”) to the High Court (the “Court”).
2. This Practice Direction supersedes Practice Direction 9.6 dated 12 July 2000.
PART II – NOTICE OF APPEAL AND APPEAL BUNDLE
3. Any person who wishes to appeal against the conviction, order or determination of a magistrate in respect of or in connection with any offence shall give to the magistrates’ clerk notice in writing of his appeal in accordance with section 114(a) of the Ordinance (the “Notice of Appeal”).
4. After the magistrates’ clerk has received the Notice of Appeal, he shall, as soon as practicable, prepare a basic appeal bundle (the “Appeal Bundle”) for the hearing of the appeal.
5. The contents of the Appeal Bundle shall be determined in accordance with the nature of the appeal and shall generally consist of the following documents:
(a) In an appeal against conviction:
(i) Notice of Appeal
(ii) Charge Sheet/Summons to Defendant/Consent to Prosecution (if any)
(iii) Summary of Facts as the Prosecution Opening
(iv) Agreed/Admitted Facts
(v) Cautioned Statements admitted in evidence
(vi) Written Prosecution/Defence Closing Submissions
(vii) Certificate of Conviction or Order
(viii) Statement of Findings
(ix) Record of Previous Convictions (if any)
(x) List of Exhibits and Documentary Exhibits
(xi) Transcript of Proceedings (which shall include the plea, oral closing submissions, verdict, reasons for verdict/order)
(b) In an appeal against sentence:
(i) Notice of Appeal
(ii) Charge Sheet/Summons to Defendant/Consent to Prosecution (if any)
(iii) Agreed/Admitted Facts
(iv) Cautioned Statements admitted in evidence
(v) Certificate of Conviction or Order
(vi) Reasons for Sentence
(vii) Reports for Sentence (if any)
(viii) Record of Previous Convictions (if any)
(ix) List of Exhibits and Documentary Exhibits
(x) Transcript of Proceedings (which shall include the plea, mitigation and sentence, reasons for sentence)
(c) In an appeal against conviction and sentence:
Combination of (a) and (b)
(d) Full transcript of review hearings will also be treated as part of the reasons for conviction/sentence and will be included in the Appeal Bundle.
PART III – ADDITIONAL TRANSCRIPT
6. Parties to an appeal may, after receipt of the Appeal Bundle served and for the purpose of the appeal, apply in writing to the Registrar of the High Court (the “Registrar”) for any transcript in addition to that already included in the Appeal Bundle. The application should state precisely the portion of the transcript required, the full name(s) of the witness(es) involved, and the detailed reason(s) for the application.
7. The Registrar may, having considered all the circumstances surrounding the application, approve or refuse the application, or approve the provision of part of the transcript so applied for.
8. Supply of the transcript so approved by the Registrar is subject to payment of the prescribed fees stipulated in the Ordinance, unless such payment is ordered by the Registrar to be dispensed with.
9. Parties to an appeal may apply in writing with detailed reasons to the Court for the transcript supplied under paragraph 8 above to be included in the Appeal Bundle. The Court may approve or refuse the application, or approve the inclusion of part of the transcript so applied for in the Appeal Bundle.
10. The provisions in this Part do not affect the power of a Judge of the Court of First Instance to order further papers including the transcript or any part thereof to be included in the Appeal Bundle.
PART IV – FILING AND SERVICE OF MATERIALS FOR THE APPEAL
11. The Court shall cause the Appeal Bundle to be served on the parties as soon as practicable.
12. Unless the Court directs otherwise or unless an extension of time is granted by the Court on sufficient grounds provided by the party concerned, the parties are required to comply with the following procedures within the timeline specified below:
(a) the appellant shall file and serve his perfected grounds of appeal, if any, within 21 days after service of the Appeal Bundle;
(b) the appellant shall file and serve his written submissions in support of the appeal within 35 days after service of the Appeal Bundle;
(c) the respondent shall file and serve written submissions in reply within 49 days after service of the Appeal Bundle; and
(d) any party who has any other application(s) relating to the appeal hearing shall make such application(s) in writing to the Court as soon as possible and in any event, not later than 14 days prior to (i) the appeal hearing or (ii) the first day of the two-week period referred to in paragraph 21 herein when that paragraph applies.
13. In the event of non-compliance with any of the procedures set out in paragraph 12 above, the Court may refuse to accept filing of the relevant document(s) out of time by the party concerned.
14. Grounds of appeal or perfected grounds of appeal eventually to be relied on at the appeal hearing must be substantial, particularized and specific, and not formulaic or expressed generally. For example, a ground of appeal or perfected ground of appeal stating “the conviction is unsafe and unsatisfactory” without further elaboration is usually considered too general, and thus ineffective in which case paragraph 17 below may apply.
15. A written submission must not be used as a vehicle to advance a ground of appeal which is not contained in the Notice of Appeal or perfected grounds of appeal.
16. A ground of appeal or perfected ground of appeal which is not argued in the written submissions and not adopted orally may be treated as abandoned.
17. In the absence of properly filed perfected grounds of appeal and/or written submissions in support of the appeal and where no reasonable excuse(s) is/are given, the Court may give an order restricting the time allowed for the appellant’s oral arguments at the appeal hearing.
18. In the absence of properly filed written submissions in reply and where no reasonable excuse(s) is/are given, the Court may give an order restricting the time allowed for the respondent’s oral arguments at the appeal hearing.
19. When non-compliance with paragraph 12 above involves failure, neglect or dereliction of duty on the part of the legal representative having conduct of the appeal, 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 V - LISTING
20. Depending on the nature and complexity of the appeal, the Court may, at the same time when the Appeal Bundle is served on the parties or anytime afterwards, fix a date for hearing the appeal.
21. Alternatively, instead of listing the appeal for hearing on a specified date, in appropriate cases, e.g. where counsel’s diaries is not a concern, the Court may, at the same time when the Appeal Bundle is served on the parties or anytime afterwards, inform the parties of a specified two-week period during which the appeal hearing will take place. When the actual hearing date is fixed, a Notice of Hearing will then be served on the parties at least 5 clear days before the hearing date.
PART VI – COMMENCEMENT DATE
22. This Practice Direction shall take effect on 15 March 2018 and apply to appeals in respect of which the Appeal Bundles are served on or after that date.
Dated this 25 day of January 2018.
| Geoffrey Ma | |
| Chief Justice |