Cap. 221 《刑事訴訟程序條例》Criminal Procedure Ordinance

Rules and orders regulating the practice and procedure under this Ordinance shall be made by the Criminal Procedure Rules Committee, which shall consist of—

Rules and orders made by the Rules Committee shall not have effect until approved by the Legislative Council and published in the Gazette. (Added 13 of 1995 s. 23)

Such rules and orders may provide for the times for or within which documents must be filed or notices given, the duties of the various officers of the court, the manner in which cases and arguments are to be presented, and generally for the better carrying out of the provisions of this Ordinance. (Amended 24 of 1950 Schedule; 15 of 1969 s. 2; 13 of 1995 s. 23)

Subject to the provisions of this Ordinance and to such rules and orders and any other enactment (including any enactment relating to juries) applicable thereto, the practice and procedure in all criminal causes and matters shall be, as nearly as possible, the same as the practice and procedure from time to time and for the time being in force for similar cases in England. (Amended 6 of 2024 s. 140)

The Rules Committee may, by notice in the Gazette, specify forms for use under this Ordinance, and such forms shall be adhered to with such variations and additions as may be necessary. (Added 13 of 1995 s. 23)

Subject to subsection (1A), the Rules Committee may, with the approval of the Legislative Council, make rules providing for the granting of legal aid in criminal cases to persons of limited means which rules, in particular, may— (Amended 13 of 1995 s. 24; 37 of 1996 s. 2)

Rules may be made under subsection (1) for the granting of legal aid to accused persons who are not represented by counsel or solicitor (and whether or not such persons are of limited means) for the purposes of assisting the court, within the meaning of section 75(6), in its consideration of the question of fitness to be tried of such persons. (Added 37 of 1996 s. 2)

The expenses of legal aid granted under such rules shall be met from moneys provided by the Legislative Council.

The Rules Committee may, with the approval of the Legislative Council, make rules providing for the payment of an allowance to witnesses in criminal proceedings before any court, and such rules may, in particular, provide for— (Amended 13 of 1995 s. 25)

The expenses of the allowances paid under such rules shall be met from moneys provided by the Legislative Council.

In this section—

Subject to this section and section 9G, a court shall order an accused person to be admitted to bail, whether he has been committed for trial or not, when—

An order under subsection (1) may be subject to such conditions as appear to the court to be necessary to secure that the person admitted to bail will not—

Without affecting the generality of subsection (2), the court—

In considering the suitability of a surety for a proposed recognizance of bail under subsection (3)(a), the court shall have regard to—

and any recognizance of bail taken from a surety under that subsection may, if an order under subsection (1) so directs, be taken before any magistrate or before the Commissioner of Correctional Services, the Deputy Commissioner of Correctional Services or a Senior Superintendent or Superintendent of Correctional Services.

If on application made to it by a surety from whom a recognizance of bail has been taken a court is satisfied that the surety has reasonable cause to believe that the person for whom he is surety will not surrender to custody as shall have been appointed by the court, the court may order that he be relieved of his obligations as a surety.

On the making of an order under subsection (1), the court shall issue a warrant for the arrest of the person for whom the surety was provided.

Any agreement indemnifying or purporting to indemnify any person against any liability which he may incur as a surety to secure the surrender to custody of a person admitted to bail shall be void.

Any person who enters into an agreement of the description mentioned in subsection (1) commits an offence.

An offence under subsection (2) is committed whether the agreement is entered into before or after the person to be indemnified becomes a surety and whether or not he becomes a surety and whether the agreement contemplates compensation in money or money’s worth.

Any person who commits an offence under subsection (2) is liable on summary conviction to a fine at level 6 and to imprisonment for 6 months, and on conviction upon indictment to a fine of any amount and to imprisonment for 12 months. (Amended E.R. 4 of 2021)

The court need not admit an accused person to bail if it appears to the court that there are substantial grounds for believing, whether or not an admission were to be subject to conditions under section 9D(2), that the accused person would—

The court in forming an opinion under subsection (1) may have regard to—

An accused person need not be admitted to bail if it appears to the court that he should be detained in custody for—

An accused person need not be admitted to bail if—

An accused person need not be admitted to bail if he is the subject of a hospital order for the time being in force.

An accused person need not be admitted to bail if he is the subject of an order made under section 109B (suspended sentence) for the time being in force and he is before the court under section 109D or 109E.

An accused person need not be admitted to bail if he is the subject of a deportation order for the time being in force made under section 20 of the Immigration Ordinance (Cap. 115).

An accused person need not be admitted to bail if he is before the court under section 5 or 6 of the Probation of Offenders Ordinance (Cap. 298) (breach of probation order; or commission of further offence).

An accused person need not be admitted to bail if he is before the court under section 8 or 9 of the Community Service Orders Ordinance (Cap. 378) (breach of community service order; or commission of further offence).

An accused person charged with murder may be admitted to bail only on the order of a judge. (Replaced 6 of 2024 s. 141)

If at any hearing the court refuses to admit an accused person to bail the court shall, at each subsequent hearing while the accused remains in custody, consider the question of whether or not he ought to be admitted to bail and—

Where a District Judge or magistrate has admitted any person to bail the Secretary for Justice may apply to a judge to review the decision of the District Judge or magistrate. (Amended L.N. 362 of 1997)

Subject to section 9I(3), an application under subsection (1) shall be made by summons before a judge in chambers and supported by affidavit.

The summons may be served on the person admitted to bail at any time before the time appointed therein for the hearing.

On the hearing of the application the Secretary for Justice shall be entitled to put before the judge such relevant argument and such relevant matter as he thinks proper, whether or not the same was before the District Judge or magistrate who made the decision, and the person admitted to bail shall also be entitled to be heard. (Amended L.N. 362 of 1997)

Notwithstanding subsection (4), if the person admitted to bail fails to appear a judge may hear and determine the application in the absence of the person if he is satisfied that the person has been served with the summons or has refused to accept service of the summons or that all reasonable attempts have been made to serve the summons.

Where a judge has heard an application under this section in the absence of the person admitted to bail, he may rehear the application if he is satisfied that it is just to do so.

Upon hearing the application, a judge may by order confirm, revoke or vary the decision of the District Judge or magistrate, and may make such other order in the matter including an order as to costs as he thinks just.

On the revocation or variation of a decision of the District Judge or magistrate under subsection (7), a judge may issue a warrant for the arrest of the person admitted to bail.

No appeal shall lie from the decision of a judge on an application under this section.

Where a District Judge or magistrate has made an order admitting any person to bail but the Secretary for Justice states that he wishes to apply for a review of his decision under section 9H, he shall upon application by the Secretary for Justice if the person so admitted is present, order that the person be detained in custody and be brought before a judge at such time and place as the Registrar may appoint. (Amended L.N. 362 of 1997)

Where a District Judge or magistrate makes an order under subsection (1) he shall immediately notify the Registrar who shall cause the person so detained to be brought before a judge as soon as practicable, and in any event within 48 hours, and inform the Secretary for Justice of the time and place at which that will be done. (Amended L.N. 362 of 1997)

When the person so detained is brought before him under this section, a judge may, if he thinks fit, dispense with the requirements of section 9H(2) and (3) and proceed to hear an application under section 9H(1).

If the judge declines to dispense with the requirements of section 9H(2) and (3), he shall order the person so detained to be kept in custody for such time as he deems sufficient to enable section 9H(2) and (3) to be complied with, and may make such other order as he thinks just.

Where a District Judge or magistrate has refused to admit a person to bail or has so admitted a person subject to any condition, that person may in the case of a refusal, apply to a judge to be admitted to bail or in the case of an admission to bail subject to any condition, apply to a judge to be admitted to bail without bail being subject to that condition.

On the hearing of an application under subsection (1), a judge may by order confirm, revoke or vary the decision of the District Judge or magistrate, and may make such other order in the matter including an order as to costs as he thinks just.

A police officer may without warrant arrest and detain any person admitted to bail if—

Any person arrested under subsection (1) shall be brought within 24 hours after his arrest or as soon as practicable thereafter before a magistrate except where he was so arrested within the period of 24 hours immediately preceding an occasion on which he is required by virtue of his bail to surrender to custody at any court, in which case he shall be brought before that court.

If it appears to the court before which a person is brought under subsection (2) that any condition of admission to bail has been or is likely to be broken, the court may—

but if it does not so appear to that court, the court shall release that person from custody and admit him to bail on the same conditions.

A person admitted to bail who, without reasonable cause, fails to surrender to custody as shall have been appointed by a court, commits an offence.

A person admitted to bail who, having reasonable cause therefor, has failed to surrender to custody at such time as shall have been appointed by a court, fails to so surrender as soon after that time as is reasonably practicable, commits an offence.

Any person who commits an offence under subsection (1) or (2) is liable on summary conviction to a fine at level 6 and to imprisonment for 6 months, and on conviction upon indictment to a fine of any amount and to imprisonment for 12 months. (Amended E.R. 4 of 2021)

Where an offence under subsection (1) or (2) is alleged to have been committed, a court, in the exercise of jurisdiction under this section, may deal with an accused person summarily without a jury and may deal with the case without a charge having been transferred under Part IV of the Magistrates Ordinance (Cap. 227) or the case having been committed for trial under Part III of that Ordinance.

If a person admitted to bail fails, without reasonable cause, to surrender to custody as shall have been appointed by a court, a court may, whether or not that person has been convicted of an offence under section 9L(1), order that the whole or part of any—

for the purpose of securing his surrender to custody shall be forfeited to the Government. (Amended 39 of 1999 s. 3)

Where a court makes an order under subsection (1), the payment of any sum due as security for a recognizance of bail taken from a surety under section 9D(3)(a) may be enforced as if it were a security to which section 64 of the Magistrates Ordinance (Cap. 227) applies.

Unless it appears to the court that the interests of public justice otherwise require, no person shall publish in Hong Kong a written report, or broadcast in Hong Kong a report, of any bail proceedings containing any matter other than that permitted under subsection (2).

A report of bail proceedings may contain—

If a report is published or broadcast in contravention of this section, the following persons—

shall be guilty of an offence and shall be liable on conviction to a fine at level 5 and to imprisonment for 6 months. (Amended E.R. 4 of 2021)

Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Secretary for Justice. (Amended L.N. 362 of 1997)

In this section—

Where pursuant to an order for transfer made under section 77A of the District Court Ordinance (Cap. 336) (in this section referred to as an order of transfer) any proceedings stand transferred to the court for trial under subsection (6) of that section and where the Secretary for Justice has instituted proceedings pursuant to section 14(1)(aa), he shall, not more than 21 days after an indictment is preferred against the accused person, but subject to subsection (2), deliver to the Registrar and, unless they have already been served, serve on the accused person— (Amended L.N. 362 of 1997)

Where the Secretary for Justice considers that it will not be practicable to comply with the requirements in subsection (1) within the period specified in that subsection, he may apply— (Amended L.N. 362 of 1997)

for an extension of that period, and the District Court judge or the judge, as the case may be, may, if he is satisfied that the accused person is not prejudiced thereby, grant such extension as he considers reasonable.

A statement of a witness referred to in subsection (1)(b) shall—

A documentary exhibit referred to in subsection (1)(c) shall, if written in a language other than English, be accompanied by an English translation certified under section 27 of the Evidence Ordinance (Cap. 8) and, if written in a language other than Chinese, be accompanied by a Chinese translation, unless on an application made in the District Court the District Judge or, on an application made in the court, the judge, directs otherwise on cause shown.

An exhibit which is mentioned in a list of exhibits referred to in subsection (1)(d) shall be clearly identified in a statement of a witness referred to in subsection (1)(b) and the accused person or his counsel or solicitor shall be given reasonable opportunity to examine such exhibit.

Failure to comply with any requirement in subsection (3), (4) or (5) shall not render the service of any documents under subsection (1) or (2) ineffective unless the judge is satisfied that the accused person is prejudiced by such failure.

Where the Secretary for Justice fails to comply with the requirements of section 10A(1) within the period specified in that section or where an extension has been granted under section 10A(2), within such extended period— (Amended L.N. 362 of 1997)

direct that the accused person be discharged in respect of the charges to which the transferred proceedings relate.

A discharge under subsection (1) shall be deemed to be an acquittal.

At any time after the receipt of the documents relating to the case and before the trial of the accused person, the Secretary for Justice may refer back the case to the magistrate with directions to reopen the inquiry for the purpose of taking evidence or further evidence on a certain point or points to be specified, and with such other directions as he may think proper. (Amended 1 of 1912 Schedule; 6 of 1954 s. 5)

Subject to any express directions which may be given by the Secretary for Justice, the effect of any such reference back to the magistrate shall be that the inquiry shall be reopened and dealt with in all respects as if the accused person had not been committed for trial.

Any direction given by the Secretary for Justice under section 10 or 11 shall be in writing, signed by him, and shall be complied with by the magistrate.

The Secretary for Justice may at any time add to, alter, or revoke any such direction.

The Secretary for Justice shall transmit forthwith copies of any such direction to the Registrar and to the Commissioner of Correctional Services, and on receipt of a copy of any such direction, the Registrar shall transmit to the committing magistrate all documents in the case that are in his possession or control. (Replaced 6 of 1954 s. 6)

When the Secretary for Justice directs that a case shall be dealt with summarily under section 10 or that an inquiry shall be reopened under section 11, the following provisions shall have effect—

The Secretary for Justice, if he sees fit to institute criminal proceedings, shall institute such proceedings in the court against the accused person as to him may seem legal and proper— (Amended L.N. 362 of 1997)

Subject to section 16, no court shall inquire into whether or not proceedings have been instituted within the period specified in subsection (1)(a) or (aa).

Where any provision in any Ordinance creates, or results in the creation of, an offence, the offence shall be triable summarily only, unless—

Where any provision in any Ordinance creates, or results in the creation of, an offence and subject to subsection (4), the words “upon indictment” or “on indictment” appear, the offence is triable only on indictment. (Replaced 6 of 2024 s. 142)

(Repealed 50 of 1991 s. 4(1))

Where any provision in any Ordinance creates, or results in the creation of, an offence and the offence is declared to be triable either summarily or upon indictment or to be punishable on summary conviction or on indictment, the offence shall be triable either on indictment or summarily.

Nothing in this section shall affect—

The Secretary for Justice shall not be bound to prosecute an accused person in any case in which he may be of opinion that the interests of public justice do not require his interference.

Whenever the Secretary for Justice declines to file an indictment against any person committed to prison for trial for any indictable offence he may issue a warrant in Form 1 in Schedule 1 to the Registrar, who shall thereupon, unless the person in question has been admitted to bail, by order under his hand and the seal of the court, in Form 2 in Schedule 2, direct the person in whose custody the prisoner may be immediately to discharge him without any fee from imprisonment in respect of the offence mentioned in such order. (5 of 1904 s. 2 incorporated. Amended 50 of 1911 s. 4; 51 of 1911; 1 of 1912 Schedule; 2 of 1912 Schedule; 17 of 1930 s. 4; 58 of 1994 s. 4)

Where the accused was committed for trial under section 80C(4) of the Magistrates Ordinance (Cap. 227) or proceedings stand transferred to the court for trial under section 77A(6) of the District Court Ordinance (Cap. 336), the accused may at any time—

apply to a judge for his discharge on the grounds that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance (Cap. 227) or, as the case may be, delivered to the Registrar under section 10A, as read with any further evidence the Secretary for Justice has notified the accused he will seek to have admitted at the trial, is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge. (Amended 59 of 1992 s. 5; L.N. 362 of 1997)

If an application is made under subsection (1) in the circumstances specified in paragraph (a) thereof—

The judge may after perusal of the documents and after hearing any representations which the accused and the Secretary for Justice may wish to make, direct that the accused shall not be arraigned on the charge, and direct that he be discharged. (Amended L.N. 362 of 1997)

Subject to section 81E(3), a discharge under this section shall be deemed to be an acquittal.

An accused who has made an application under subsection (1) and thereafter abandons or does not proceed with his application, may not make a further application or have the application previously made by him reinstated.

Where an indictment has been filed references in this section to the charge shall be construed as references to the charge as set out in the indictment.

Without derogation from the generality of its powers under section 9 the Rules Committee may make rules under that section for regulating and restricting written or broadcast reports of proceedings under this section or section 79G or 81E. (Amended 13 of 1995 s. 26; 69 of 1995 s. 2)

Section 87A(8) and (9) of the Magistrates Ordinance (Cap. 227) shall apply to a contravention of rules under section 9 as read with subsection (7) of this section as they do to a report published or broadcast in contravention of section 87A.

Every indictment shall be signed by the Secretary for Justice, and shall bear date on the day when it is signed. (Amended L.N. 362 of 1997)

(Repealed 35 of 1976 s. 6)

Subject to the provisions of the rules under this Ordinance, charges for more than one offence may be joined in the same indictment. (Replaced 50 of 1991 s. 4)

If one sentence is passed upon any verdict of guilty on an indictment containing more counts than one, the sentence shall be good if any of the counts upon which such verdict has been returned would have justified such sentence.

Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice.

Where an indictment is so amended a note of the order for amendment shall be endorsed on the indictment.

Where, before trial or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.

Where, before trial or at any stage of a trial, the court is of opinion that the postponement of the trial of a person accused is expedient as a consequence of the exercise of any power of the court under this Ordinance to amend an indictment or to order a separate trial of a count, the court shall make such order as to the postponement of the trial as appears necessary.

Where an order of the court is made under this section for a separate trial or for the postponement of a trial—

Any power of the court under this section shall be in addition to and not in derogation of any other power of the court for the same or similar purposes.

Subject to subsection (2) no indictment charging any person with an indictable offence shall be preferred unless—

Where a person charged with an indictable offence has been committed for trial, the indictment against him may include, either in substitution for or in addition to counts charging the offence for which he was committed, any counts founded on facts or evidence disclosed in any depositions, any documents served on the accused under section 80B of the Magistrates Ordinance (Cap. 227) or any written statements admitted in evidence under section 81A of that Ordinance, being counts which may lawfully be joined in the same indictment. (Amended 34 of 1972 s. 5; 6 of 1990 s. 3)

Nothing in sections 18 and 23 or the rules made under section 9 shall affect the law or practice relating to the jurisdiction of a court or the place where an accused person can be tried, nor prejudice or diminish in any respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged, nor otherwise affect the laws of evidence in criminal cases. (Amended 35 of 1976 s. 8)

The Registrar shall endorse on or annex to every indictment and every copy thereof delivered for service a notice of trial, and such notice shall specify the date on which the accused person shall attend before the court to answer to the indictment. (Amended 63 of 1971 s. 4)

The notice may be in Form 4 in Schedule 1 or as near thereto as circumstances will admit. (Amended 50 of 1911 s. 4; 8 of 1912 s. 52; 58 of 1994 s. 4)

The bailiff shall, as soon as may be after having received the same, deliver to a gaoler the copy and notice for the information of the Commissioner of Correctional Services and to the accused himself the copy and notice for service on the accused. (Replaced 17 of 1930 s. 6)

In any case where the accused person cannot be found, the bailiff shall leave the said copy and notice with some one of his household for him at his dwelling-house, or with some one of his clerks for him at his place of business, and, if none such can be found, shall affix the said copy and notice to the outer or principal door of his dwelling-house. (Amended 13 of 1995 s. 2)

The bailiff shall, at the time of service, explain to the accused person, or to the person, if any, with whom the said copy and notice are left, the nature and exigency thereof.

In criminal proceedings in any court on a plea of autrefois convict or autrefois acquit the accused person may state that he has been previously convicted or acquitted, as the case may be, of the offence charged.

Either party shall be at liberty to apply to the court or a judge for a rule or order for the inspection, by himself or by his witnesses, of any real or personal property, the inspection of which may be material to the proper determination of the issue; and it shall be lawful for the court or judge, if it or he thinks fit, to make such rule or order, on such terms as to costs and otherwise as the court or judge may direct.

For the purpose of any criminal proceedings before the court a summons requiring the person to whom it is directed to attend before the court and give evidence or produce any document or thing specified in the summons may be issued out of the court.

If any person in respect of whom a witness summons has been issued applies to the court out of which the summons was issued and satisfied it that he cannot give any material evidence or, as the case may be, produce any document or thing likely to be of material evidence the court may direct that the summons shall be of no effect.

Where on any such application a direction is given that a witness summons shall be of no effect, the person at whose instance the summons was issued may be ordered to pay the whole or any part of the costs of the application.

Any costs payable under such an order shall be taxed by the proper officer of the court and payment of those costs shall be enforceable in the same manner as an order for payment of costs made by the court in a civil case.

A witness summons shall continue to have effect until the conclusion of the proceedings at which the attendance of the witness is required.

Any person who—

shall be guilty of a contempt of that court which shall be punishable by that court summarily as a contempt committed in the face of the court.

No person shall by reason of such disobedience or refusal be liable to imprisonment for a period exceeding 2 years.

If the court is satisfied by evidence on oath that a witness in respect of whom a witness order or witness summons is in force is unlikely to comply with the order or summons, the court may issue a warrant to arrest the witness and bring him before it:Provided that a warrant shall not be issued under this subsection in the case of a witness subject to a conditional witness order unless notice has been given requiring him to attend the trial, nor in the case of a witness subject to a witness summons unless the judge is satisfied by such evidence as aforesaid that the witness is likely to be able to give material evidence or produce any document or thing likely to be material evidence in the proceedings.

Where a witness who is required to attend before a court by virtue of a witness order or a witness summons fails to attend in compliance with the order or summons the court may—

A witness brought before the court in pursuance of a warrant under this section may be remanded by the court in custody or on bail (with or without sureties) until such time as the court may appoint for receiving his evidence or dealing with him under section 36 and where a witness attends a court in pursuance of a notice under this section the court may direct that the notice shall have effect as if it required him to attend at any later time appointed by the court for receiving his evidence or dealing with him as aforesaid.

If the court issuing a warrant in respect of any witness under section 37 is of the opinion that it is appropriate to do so, the court may endorse the warrant for bail, and in any such case—

If a court issuing a warrant in respect of any witness under section 37 is of the opinion that the evidence of the witness can be dispensed with but that consideration should be given to dealing with him under section 36 it may endorse the warrant as issued for the purpose of section 36.

Where a witness appears before a court in pursuance of a recognizance entered into under section 37 or this section, the court may enlarge his recognizance and those of his sureties, if any, to any later time appointed by the court for receiving the evidence of that person or dealing with him under section 36.

Without prejudice to the enforcement of any recognizance entered into as aforesaid, section 37 shall apply to any witness who fails to attend before a court in compliance with such a recognizance as it applies to a witness who fails to attend in obedience to a witness summons.

Every person to be tried before the court shall be tried on an indictment.

Subject to the provisions of section 42 such trial shall be had by and before a judge and a jury. (Amended 50 of 1911 s. 4; 1 of 1912 Schedule; 5 of 1924 s. 8)

Notwithstanding subsection (2), but without prejudice to section 59, where any issue arises in the trial as to the admissibility of any evidence such issue may be determined before the jury is empanelled. (Added 63 of 1984 s. 2)

Where it appears by the return made by the bailiff that the copy of the indictment and notice of trial has been duly served, and the accused person, on being thrice called on the day appointed for trial, does not appear, a motion may be made on behalf of the prosecution, if the accused person has been admitted to bail, that his sureties, if any, may be called on their recognizances, and, in default of his appearance, that the same may be estreated. (Amended 56 of 1994 s. 5)

On any such application the court shall make such order as it may think just.

The accused person shall be placed at the bar unfettered and not in prison clothes, unless the court sees cause to direct otherwise.

The indictment shall then be read over to him by the Registrar, and explained, if necessary, by the Registrar or the interpreter of the court; and he shall be required to plead instantly thereto, unless he objects to the want of due service of the indictment and notice of trial, and the court finds that he has not been duly served therewith.

Where the accused person is a corporation, a plea in writing may be entered by its representative, and if either the corporation does not appear by a representative or, though it does so appear, fails to enter as aforesaid any plea, the court shall order a plea of not guilty to be entered and the trial shall proceed as though the corporation had duly entered a plea of not guilty. (Added 11 of 1962 s. 2)

If a person is arraigned on an indictment—

If on the trial of any information, charge or indictment for any offence it is proved that the accused is not guilty of that offence but the allegations in the information, charge or indictment amount to or include, whether expressly or by implication, an allegation of another offence falling within the jurisdiction of the court of trial, he may be found guilty of that other offence or of an offence of which he could be found guilty on an information, charge or indictment specifically charging that other offence. (Amended 6 of 2024 s. 143)

For the purposes of subsection (2) any allegation of an offence shall be taken as including an allegation of attempting to commit that offence; and where a person is charged with attempting to commit an offence or with any assault or other act preliminary to an offence but not with the completed offence, then he may be convicted of the offence charged notwithstanding that he is shown to be guilty of the completed offence.

Where a person arraigned on an indictment pleads not guilty of an offence charged in the indictment but guilty of some other offence of which he might be found guilty on that charge, and he is convicted on that plea of guilty without trial for the offence of which he has pleaded not guilty then, whether or not the 2 offences are separately charged in distinct counts, his conviction of the one offence shall be an acquittal of the other.

Any power to bring proceedings for an offence by criminal information is abolished.

Subsections (1) and (2) shall apply to an indictment containing more than one count as if each count were a separate indictment.

No objection to an indictment shall be taken by way of demurrer, but if an indictment does not state in substance an indictable offence or states an offence not triable by the court, the accused person may move the court to quash it or in arrest of judgment. (Amended 50 of 1911 s. 4)

If such motion is made before the accused person pleads, the court shall either quash the indictment or amend it. (Amended 50 of 1911; 1 of 1912 Schedule)

If the defect in the indictment appears to the court during the trial, and the court does not think fit to amend the indictment, it may either quash the indictment or leave the objection to be taken in arrest of judgment. (Amended 50 of 1911; 1 of 1912 Schedule)

If the indictment is quashed, the court may direct the accused person to be detained in custody until such time or for such period as the court may order or to be released on bail, and may order him to plead to another indictment when called on at the same time or during that period, as the case may be. (Amended 50 of 1911; 1 of 1912 Schedule; 6 of 1990 s. 4)

Every person charged with an offence, whether charged solely or jointly with any other person, shall be a competent witness for the defence at every stage of the proceedings: (Amended 23 of 2003 s. 3) Provided as follows— (a)a person so charged shall not be called as a witness in pursuance of this section except upon his own application; (b)the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution; (Amended 23 of 2003 s. 3) (c)-(d)(Repealed 23 of 2003 s. 3) (e)a person charged and being a witness in pursuance of this section may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged; (f)a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless—(i)the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or(ii)he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution; or(iii)he has given evidence against any other person charged in the same proceedings; (Amended 50 of 1981 s. 2) (g)a person charged and called as a witness in pursuance of this section shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence. (14 of 1906 s. 2 incorporated. Amended 20 of 1948 s. 4; 23 of 2003 s. 3)

Notwithstanding any rule of law, the right of a person charged to make a statement without being sworn is hereby abolished. (Added 34 of 1972 s. 9)

[cf. 1898 c. 36 s. 1 U.K.]

The fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply. (14 of 1906 s. 4 incorporated. Amended 34 of 1972 s. 10)

Upon the trial of any person charged with an offence—

The husband or wife of an accused shall be competent to give evidence on behalf of the accused or a co-accused and, subject to subsection (5), shall be competent to give evidence for the prosecution.

Subject to subsection (5), the husband or wife of an accused shall be compellable to give evidence on behalf of the accused.

Subject to subsection (5), the husband or wife of an accused shall be compellable—

An offence is a specified offence for the purposes of subsection (3) if—

Subject to subsection (6), where an accused and the husband or wife of the accused are standing trial together, neither spouse shall at the trial be competent to give evidence for the prosecution under subsection (1), or be compellable to give evidence under subsection (2) or (3).

Subsection (5) shall not apply to either spouse who is no longer liable to be convicted of any offence in the trial (whether as a result of pleading guilty or for any other reason).

Section 7 of the Evidence Ordinance (Cap. 8) (privilege of husband and wife) and section 8(2) of that Ordinance (evidence of access) shall not apply to the husband or wife of an accused, where the husband or wife is giving evidence for the prosecution, or on behalf of the accused or a co-accused, in circumstances in which he or she is compellable to do so under subsection (2) or (3), as the case may be.

Section 65A of the Evidence Ordinance (Cap. 8) (privilege against incrimination of self or spouse in criminal proceedings) shall not apply to the husband or wife of an accused, where the husband or wife is giving evidence for the prosecution, or on behalf of a co-accused, in circumstances in which he or she is compellable to do so under subsection (3).

Subject to subsection (10), a former husband or wife of an accused shall be competent and compellable to give evidence as if he or she had never been married to the accused.

A former husband or wife of an accused shall not, as regards matters that occurred during his or her marriage to the accused, be compellable to give evidence for the prosecution, or on behalf of a co-accused, unless the former husband or wife would be so compellable under subsection (3) if he or she were still married to the accused.

The failure to call the husband or wife of an accused to give evidence on behalf of the accused or a co-accused shall not be made the subject of any question or comment by the prosecution.

In this section—

For the purposes of subsection (3), the age of a child of the family at the material time shall be deemed to be or to have been that which appears to the court to be or to have been his age at that time.

Where the husband or wife of an accused is called to give evidence for the prosecution, or on behalf of a co-accused, in circumstances in which he or she is compellable to give evidence under section 57(3), the husband or wife may at any time apply to the court for an exemption from the obligation to give evidence.

Where an application for an exemption is made to a court under subsection (1) and the court is satisfied—

the court may exempt the husband or wife, wholly or in part, from the obligation to give evidence.

Where a court is constituted by a judge and jury, an application for an exemption made under subsection (1) shall be heard and determined by the judge in the absence of the jury.

The fact that the husband or wife of an accused has applied for, or been granted or refused, an exemption under this section shall not be made the subject of any question or comment by the prosecution.

Where the husband or wife of an accused is called to give evidence for the prosecution, or on behalf of a co-accused, in circumstances in which he or she is compellable to give evidence under section 57(3), the court must be satisfied that the husband or wife is aware of his or her right to apply for an exemption under subsection (1).

Any requirement whereby at a trial by and before a judge and jury it is obligatory for the judge to give the jury a warning about convicting the accused on the uncorroborated evidence of a person merely because that person is an alleged accomplice of the accused is hereby abrogated.

Any requirement that is applicable at a trial by a judge or magistrate and corresponds to the requirement mentioned in subsection (1) is hereby abrogated.

In any criminal proceedings a previous conviction against any person may be proved in the manner prescribed in this section in addition to any other method of proving such conviction.

There shall be produced to the court or magistrate the following—

Any certificate issued under this section and purporting to be signed by a police officer shall until the contrary is proved be deemed to have been signed by such police officer and shall be evidence of the facts stated therein.

Where no certificate in Form 7 is available the court or magistrate may order that the person before the court shall have his finger-prints taken and that such a certificate shall be prepared.

Where it is desired to prove a conviction in any part of the Commonwealth, the court or magistrate may accept a certificate in Form 6 purporting to be signed by the person stated therein to be the person having control of the relevant criminal records, and such certificate shall be evidence of the facts stated therein. (Amended 39 of 1999 s. 3)

A court or jury, in determining whether a person has committed an offence—

In any criminal proceedings, other than committal proceedings, a written statement by any person shall, subject to the conditions contained in subsection (2), be admissible as evidence to the like extent as oral evidence to the like effect by that person.

A statement may be tendered in evidence under subsection (1) if—

Provided that paragraphs (c) and (d) shall not apply if the parties agree before or during the hearing that the statement shall be so tendered.

If a statement tendered in evidence under subsection (1)—

Notwithstanding that a written statement made by any person may be admissible as evidence by virtue of this section—

So much of any statement as is admitted in evidence by virtue of this section shall, unless the court otherwise directs, be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud.

Any document or object referred to as an exhibit and identified in a written statement admitted in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement.

A document required by this section to be served on any person may be served—

Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted.

An admission under this section—

An admission under this section for the purpose of proceedings relating to any matter shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal or retrial).

An admission under this section may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter.

On a trial on indictment the defendant shall not without the leave of the court adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi.

Without prejudice to subsection (1), on any such trial the defendant shall not without the leave of the court call any other person to give evidence in support of an alibi unless—

The court shall not refuse leave under this section if it appears to the court that the defendant was not informed in accordance with the provisions of section 85A of the Magistrates Ordinance (Cap. 227), section 77B of the District Court Ordinance (Cap. 336) or section 4 of the Complex Commercial Crimes Ordinance (Cap. 394), as the case may be, of the requirements of this section. (Amended 57 of 1988 s. 30; 59 of 1992 s. 7)

Any evidence tendered to disprove an alibi may, subject to any directions by the court as to the time it is to be given, be given before or after evidence is given in support of the alibi.

Any notice purporting to be given under this section on behalf of the defendant by his solicitor shall, unless the contrary is proved, be deemed to be given with the authority of the defendant.

A notice under subsection (1) shall either be given in court during, or at the end of, the committal proceedings or upon the making of an order of transfer under section 4 of the Complex Commercial Crimes Ordinance (Cap. 394) or where proceedings stand transferred to the court under section 77A(6) of the District Court Ordinance (Cap. 336), as the case may be, or be given in writing to the prosecutor, and a notice under subsection (2)(c) or (d) shall be given in writing to the prosecutor. (Amended 57 of 1988 s. 30; 59 of 1992 s. 7)

A notice required by this section to be given to the prosecutor may be given by delivering it to the Secretary for Justice or by leaving it at the Secretary for Justice’s office, or by sending it by registered post addressed to the Secretary for Justice at his office. (Amended L.N. 362 of 1997)

In this section—

In computing the prescribed period there shall be disregarded any day which is a general holiday under the General Holidays Ordinance (Cap. 149). (Amended 35 of 1998 s. 5)

Following the committal of any person or the transfer of any charge or proceedings or action or matter for trial in the court, or the making of an order for the retrial of any person in the court, if any party to the proceedings proposes to adduce expert evidence (whether of fact or opinion) in the proceedings (otherwise than in relation to sentence) he shall as soon as practicable, unless in relation to the evidence in question he has already done so—

A party may by notice in writing waive his right to be furnished with any of the matters mentioned in subsection (1) and, in particular, may agree that the statement mentioned in subsection (1)(a) may be furnished to him orally and not in writing.

If a party has reasonable grounds for believing that the disclosure of any evidence in compliance with the requirements imposed by subsection (1) might lead to the intimidation, or attempted intimidation, of any person on whose evidence he intends to rely in the proceedings, or otherwise to the course of justice being interfered with, he shall not be obliged to comply with those requirements in relation to that evidence.

Where, in accordance with subsection (3), a party considers that he is not obliged to comply with the requirements imposed by subsection (1) with regard to any evidence in relation to any other party, he shall give notice in writing to that party to the effect that the evidence is being withheld and the grounds therefor.

A party who seeks to adduce expert evidence in any proceedings and who fails to comply with subsection (1) shall not adduce that evidence in those proceedings without the leave of the court.

This section shall not have effect in relation to any proceedings in which a person has been committed for trial or ordered to be retried, or in which any charge or proceedings or action or matter has been transferred, before the date on which this section comes into force.

[cf. S.I. 1987/716 U.K.]

Where an indictment is preferred against an accused person and before he is arraigned, the Secretary for Justice may apply to the court for an order that the proceedings against the accused person be transferred before a magistrate to be dealt with summarily or to be transferred to the District Court. (Amended L.N. 440 of 1993; L.N. 362 of 1997)

Any application under subsection (1) shall be made to a judge by way of motion, notice of which shall be supported by an affidavit showing the grounds on which the application is made.

A copy of the notice of motion and the affidavit shall be served on the accused person not less than 21 days before the date named in the notice for hearing the motion, unless the judge otherwise directs.

On an application being made under subsection (1), the judge may, if he considers it fit having regard to the interests of justice, make an order allowing the application (in this section and section 65G referred to as an “order of transfer”), or refuse the application and may in either case make such order as to costs as he considers appropriate.

Where an order of transfer is made the judge shall appoint a date on which the accused person is required to appear or be brought before a magistrate or the District Court as may be applicable.

The date appointed under subsection (5) shall not be earlier than 21 days from the date of the order of transfer.

Where the judge has given the warning required by subsection (7)(a) or the clerk of the court has forwarded to the accused person written notice under subsection (7)(b), the clerk of the court shall give the accused person written notice of the provisions of section 75A of the District Court Ordinance (Cap. 336). (Amended 13 of 1995 s. 49)

The written notices required by subsections (7) and (8) shall be sent to the accused person not less than 28 days before the date set for trial. (Added 13 of 1995 s. 49)

Where an application is made under subsection (1), the entire proceedings before the court shall be stayed until the application is disposed of unless the judge otherwise orders in respect of any matter.

At the time of making an order of transfer, the judge may remand the accused person in custody or on bail as he may consider appropriate.

Unless the judge otherwise orders in respect of any matter, an order of transfer shall operate to terminate the proceedings before the court.

An order of transfer shall not be subject to appeal.

This section shall not apply in relation to any proceedings which stand transferred to the court pursuant to section 77A of the District Court Ordinance (Cap. 336).

Where apart from this subsection the court does not have jurisdiction to hear and determine an application made under subsection (1), this subsection shall confer such jurisdiction.

An application for an order under section 65F(4) may be made in relation to one or more accused persons in any proceedings or one or more counts in an indictment.

Any reference to proceedings in sections 10A, 14(1)(aa), 16(1), 24A(1), 65F (other than in subsection (9) thereof) and 65G shall be construed as being a reference to proceedings as respects the accused person to whom the order referred to in subsection (1) relates or, when appropriate, the count to which it relates.

The length of any sentence of imprisonment imposed on a person by a court shall be treated as reduced by any period during which he was in custody by reason only of having been committed to custody by an order of a court made in connection with any proceedings relating to the sentence or the offence for which it was passed, or with any proceedings from which those proceedings arose, but where the person was, in respect of the offence for which the sentence of imprisonment was imposed, subject to an earlier order made under—

any such period of custody falling before the earlier order was made shall be disregarded for the purposes of this section.

The length of any sentence of imprisonment imposed on a person by a court shall also be treated as reduced by any period during which he was, immediately prior to his first appearance in court in connection with any proceeding relating to the offence for which the sentence of imprisonment was imposed, in custody—

For the purposes of this section a suspended sentence shall be treated as a sentence of imprisonment when it takes effect under section 109C and as being imposed by the order under which it takes effect.

No period of custody, other than a period which would have been taken into account immediately before the commencement of the Criminal Procedure (Amendment) Ordinance 1983 (46 of 1983) for the purpose of reducing a term of imprisonment, shall be taken into account for the like purpose under this section unless it falls after the commencement of the Criminal Procedure (Amendment) Ordinance 1983 (46 of 1983).

No period of custody, other than a period which would have been taken into account immediately before the commencement of the amendment to this section effected by the Administration of Justice (Miscellaneous Provisions) Ordinance 1995 (13 of 1995) for the purpose of reducing a term of imprisonment, shall be taken into account for the like purpose under this section unless it falls after that commencement. (Added 13 of 1995 s. 54)

Any reference in this or any other Ordinance to the length of any sentence of imprisonment shall, unless the context otherwise requires, be construed as a reference to the sentence pronounced by the court and not the sentence as reduced by this section.

When imposing a discretionary life sentence on a person for an offence, the judge must specify as part of the sentence a minimum term that the person must serve for the offence.

If, when imposing an indeterminate sentence of imprisonment on a person for an offence, the judge is of the opinion that there are matters relating to the person or the offence which should be recorded for the purpose of reviewing the sentence in the future, the judge must make a report in writing to the Chief Executive specifying those matters. (Amended 39 of 1999 s. 3)

As soon as practicable after the commencement* of this section and in any event within 6 months after such commencement, the Secretary for Justice must, in respect of each prescribed prisoner, apply to the court for a determination by a judge under this section.

If, within 6 months after the commencement* of this section, the Secretary for Justice does not make any application in respect of any prescribed prisoner under subsection (1), the prescribed prisoner may also apply to the court for a determination by a judge under this section.

Subject to subsection (4), the judge hearing an application under subsection (1) or (2) must determine the minimum term that the prescribed prisoner must serve for the relevant offence.

Where the prescribed prisoner is serving the relevant sentence in respect of the conviction of murder committed when he was under 18 years of age, then, subject to the consent of the prescribed prisoner to the application of this subsection to him, the judge has the discretion as to whether—

In making a determination under this section—

Notwithstanding subsections (3) and (5), if the term determined under subsection (3) (whether or not also by application of subsection (4)(a)) as the minimum term that the prescribed prisoner must serve for the relevant offence is longer than the term specified as the minimum term to be served by the prescribed prisoner for the relevant offence under the previous recommendation, the term so determined is, for all purposes, to be treated as equal to the term so specified.

If, when making a determination under subsection (3) (whether or not also by application of subsection (4)(a)), the judge is of the opinion that there are any special considerations or circumstances relating to the prescribed prisoner or the relevant offence which should be taken into account in any future review of the relevant sentence, the judge must make a report in writing to the Chief Executive specifying details of those special considerations or circumstances.

An application by the Secretary for Justice or a prescribed prisoner under section 67C(1) or (2) is to be—

No charge is to be payable for any application under section 67C(1) or (2).

As soon as practicable after the Secretary for Justice has made an application in respect of a prescribed prisoner under section 67C(1), the Secretary for Justice must serve a copy of the application on the prescribed prisoner.

For the purposes of an application in respect of a prescribed prisoner under section 67C(1) or (2), the Registrar must, as soon as practicable after a request in writing has been made to him by the Secretary for Justice or the prescribed prisoner, as the case may be, as the person by whom the application is to be made, deliver to the Secretary for Justice or the prescribed prisoner, as the case may be—

Where an application has been made in respect of a prescribed prisoner under section 67C(1) or (2), the Secretary for Justice or the prescribed prisoner may apply to a judge for—

and if the judge is satisfied that it is necessary and practicable to do so, the judge must direct the Registrar to deliver the copy to both the Secretary for Justice and the prescribed prisoner.

Without prejudice to section 123, all proceedings conducted before a judge for the purposes of an application under section 67C(1) or (2) (other than any proceedings conducted before a judge for the purposes of an application under subsection (5)) must be held in open court.

Where, before any determination is made under section 67C(3) (whether or not also by application of section 67C(4)(a)) in respect of a prescribed prisoner, any order has been made under section 15(1)(b) of the Long-term Prison Sentences Review Ordinance (Cap. 524) in respect of the prescribed prisoner (whether or not any such order has been renewed under section 15(4) of that Ordinance)—

Where, before any determination is made under section 67C(4)(b) in respect of a prescribed prisoner, any order has been made under section 15(1)(b) of the Long-term Prison Sentences Review Ordinance (Cap. 524) in respect of the prescribed prisoner (whether or not any such order has been renewed under section 15(4) of that Ordinance), upon the making of the determination—

In sections 67B, 67C, 67D, 67E and 67F and this section—

In sections 67C and 67D, any reference to judge is a reference to a judge of the court, a recorder of the court or a deputy judge of the court.

Where a person is convicted of an offence, the court may, in addition to passing such sentence as may otherwise by law be passed or making an order under section 107(1), order the person so convicted to pay to any aggrieved person such compensation for—

as it thinks reasonable.

The amount ordered as compensation under subsection (1) shall be deemed a judgment debt due to the person entitled to receive the same from the person so convicted. (Amended 23 of 2002 s. 7)

If before an order for compensation is made, any money—

the court may, on making the order, order that the compensation be paid out of any money so taken or paid. (Added 23 of 2002 s. 7)

Subsection (3) shall not apply to any money that is a first charge for the benefit of the Director of Legal Aid within the meaning of section 18A(1) of the Legal Aid Ordinance (Cap. 91). (Added 23 of 2002 s. 7)

Payment of the compensation may be enforced at the instance of any person entitled thereto in the same way as a judgment debt. (Added 23 of 2002 s. 7)

Where any act or omission is charged against any person as an offence, and it is given in evidence on trial of such person for that offence that he was insane, so as not to be responsible according to law for his actions at the time when the act was done or the omission made, then, if it appears to the jury before whom such person is tried that he did the act or made the omission charged, but was insane as aforesaid at the time when he did or made the same, the jury shall return a special verdict that the accused person is not guilty by reason of insanity. (Amended 81 of 1997 s. 59)

Section 75(7) shall apply to this section as it applies to section 75. (Added 81 of 1997 s. 59)

This section applies where on the trial of a person the question arises (at the instigation of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Ordinance it would constitute a bar to his being tried. (Replaced 37 of 1996 s. 3)

The court, if having regard to the nature of the supposed disability is of opinion that it is expedient so to do and in the interests of the accused person, may postpone consideration of the said question (hereinafter referred to as the question of fitness to be tried) until any time up to the opening of the case for the defence, and if before the question of fitness to be tried falls to be determined the jury return a verdict of acquittal on the count or each of the counts on which the accused person is being tried that question shall not be determined.

Subject to subsection (2), the question of fitness to be tried shall be determined as soon as it arises.

The question of fitness to be tried shall be determined by a jury, and—

A jury shall not make a determination under subsection (4) except on the written or oral evidence of 2 or more registered medical practitioners (of whom not less than 2 shall be psychiatrists on the Specialist Register established under section 6(3) of the Medical Registration Ordinance (Cap. 161)). (Replaced 37 of 1996 s. 3. Amended 32 of 2000 s. 11)

In this section—

In this section, any reference to a jury shall, where the trial concerned takes place in the District Court or before a magistrate, be read as a reference to a District Judge or the magistrate, as the case may be. (Added 37 of 1996 s. 3)

Where in accordance with section 75 it is determined by a jury that an accused person is under disability, then—

Section 75(6) and (7) shall apply to this section as it applies to section 75.

For the avoidance of doubt it is hereby declared that—

This section applies where—

Subject to subsection (3), the court shall—

Subsection (2)(b) shall not apply where the offence to which the special verdict or the finding relates is an offence the sentence for which is fixed by law.

For the avoidance of doubt, it is hereby declared that—

Section 75(6) and (7) shall apply to this section as it applies to section 75.

A record (whether made by means of shorthand notes, by mechanical, digital, electronic or optical means or otherwise) kept in accordance with rules made under section 9, or such other record as the trial judge may direct, shall be taken of the proceedings at the trial of any person on indictment who, if convicted, is entitled or may be authorized to appeal to the Court of Appeal. (Amended 6 of 2025 s. 49)

A record taken under subsection (1) shall be open for inspection without fee or reward by—

A decision by the Registrar to refuse permission to inspect shall be final.

The right to inspect under subsection (2) shall include the right to a copy of the record subject, in the case of applicants under subsection (2)(g) and (h), to payment of the prescribed fee.

Disclosure of the contents of a record under subsection (2) shall not amount to a breach of the Rehabilitation of Offenders Ordinance (Cap. 297).

In this section—

Where a child, other than the defendant, is to give evidence, or be examined on video recorded evidence given under section 79C, in proceedings in respect of—

the court may, on application or on its own motion, permit the child to give evidence or be examined by way of a live television link, subject to such conditions as the court considers appropriate in the circumstances.

Where a mentally incapacitated person, including one who is a defendant, is to give evidence, or be examined on video recorded evidence given under section 79C, in proceedings in respect of an offence that is triable— (Amended 81 of 1997 s. 59)

the court may, on application or on its own motion, permit the person to give evidence or be examined by way of a live television link, subject to such conditions as the court considers appropriate in the circumstances.

Where a witness in fear is to give evidence in proceedings in respect of any offence, the court may, on application or on its own motion, permit the person to give evidence by way of a live television link, subject to such conditions as the court considers appropriate in the circumstances.

If a complainant is to give evidence in proceedings involving a specified sexual offence, the court may, on application or on its own motion, permit the complainant to give evidence by way of a live television link, subject to any conditions the court considers appropriate in the circumstances. (Added 17 of 2018 s. 3)

Where a person is giving evidence in proceedings or being examined by way of a live television link, the place from which he is giving the evidence shall, for all purposes in connection with such proceedings, be deemed to be part of the courtroom in which such proceedings are taking place.

The audio-visual facilities used in a live television link must be approved by the Chief Justice. (Added 20 of 2014 s. 4)

In this section—

Where in proceedings in respect of—

a video recording has been made of an interview between an adult and a child who is not a defendant and the interview relates to any matter in issue in the proceedings, the video recording may, with leave of the court, be given in evidence.

Where in proceedings in respect of an offence that is triable—

a video recording has been made of an interview between an adult and a mentally incapacitated person, including a mentally incapacitated person who is a defendant where such a defendant and his counsel so request, and the interview relates to any matter in issue in the proceedings, the video recording may, with leave of the court, be given in evidence.

Where a video recording is tendered in evidence under this section, the court shall grant leave to admit the recording unless—

and where the court grants such leave it may, if it is of the opinion that in the interests of justice any part of the recording ought not to be admitted, direct that that part shall be excluded.

In considering whether any part of a video recording ought to be excluded, the court shall consider whether any prejudice to the defendant, or one of the defendants, which might result from the admission of that part is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview.

Where a video recording is admitted—

Where a video recording is given in evidence, any statement made by the child or mentally incapacitated person which is disclosed by the recording shall be treated as if given by that witness in direct oral testimony and accordingly—

and in estimating the weight, if any, to be attached to such a statement, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

A magistrate inquiring into an indictable offence at committal proceedings may consider any video recording in respect of which leave for its production as evidence is to be sought at the trial, notwithstanding that the child witness or the mentally incapacitated witness is not called at the committal proceedings.

Nothing in this section shall prejudice the admissibility of any video recording which would be admissible apart from this section.

Where a child, other than one who is the defendant, is to give evidence in proceedings in respect of—

and in respect of such proceedings—

a party to the proceedings may apply for leave for a deposition in writing to be taken from the child by a magistrate.

Where a mentally incapacitated person is to give evidence in proceedings in respect of an offence that is triable—

and in respect of such proceedings—

a party to the proceedings may apply for leave for a deposition in writing to be taken from the mentally incapacitated person, including a mentally incapacitated person who is a defendant where such a defendant and his counsel so request, by a magistrate. (Amended 81 of 1997 s. 59)

The court shall not grant leave to take a deposition under this section unless—

Where the application is based on danger to physical or mental health, the court hearing the application may summon the medical practitioner who made the affidavit or affirmation to appear to answer questions or be cross-examined.

Where leave has been granted, a magistrate may take the deposition at any time before the trial of the offence commences.

A deposition shall be accompanied by a certificate signed by the magistrate stating—

A deposition taken in accordance with this section is admissible as evidence without further proof at the trial of the offence to which the deposition relates.

Except with leave of the court, a witness in respect of whom a deposition has been taken under this section shall not be examined or cross-examined in any subsequent hearing on any matter which in the court’s opinion has been dealt with in the deposition.

In taking a deposition the magistrate may, on application or on his own motion, allow testimony to be given by way of a live television link, subject to such conditions as the magistrate considers appropriate in the circumstances.

Where—

and the Director of Public Prosecutions is of the opinion—

the Director of Public Prosecutions may serve a notice of transfer on the relevant magistrate certifying his opinion, together with an affidavit setting out the reasons for such opinion. (Amended L.N. 362 of 1997)

Where—

and the Director of Public Prosecutions is of the opinion—

the Director of Public Prosecutions may serve a notice of transfer on the relevant magistrate certifying his opinion, together with an affidavit setting out the reasons for such opinion. (Amended L.N. 362 of 1997)

A notice of transfer shall be served on the magistrate before the person charged elects to have the charge heard at a preliminary inquiry under section 80C(1)(b) of the Magistrates Ordinance (Cap. 227).

On or before the day the notice of transfer is served on the magistrate, copies of the documents referred to in section 80B(1) of the Magistrates Ordinance (Cap. 227) shall be served on the defendant and the originals filed with the magistrate, and that section 80B applies to those documents to the extent possible.

On the service of the notice of transfer, the magistrate shall, without further examination or inquiry, forthwith order that the defendant stand committed for trial in the Court of First Instance on the charge specified in the notice of transfer and shall so inform the defendant or cause him to be so informed. (Amended 25 of 1998 s. 2)

Sections 85A and 86 of the Magistrates Ordinance (Cap. 227) apply to a committal under this section subject to the following—

A person committed under this section shall be deemed to have been committed for the purposes of section 24A(1)(a) and (2).

Where a notice of transfer has been served, any person to whom the notice relates may, at any time before he is arraigned (and whether or not an indictment has been preferred against him), apply orally or in writing to the Court of First Instance to be discharged. (Amended 25 of 1998 s. 2)

The court shall, if it appears to it that the evidence against the applicant would not be sufficient for a jury properly to convict him, direct that he not be arraigned on the charge and direct that he be discharged.

No oral application may be made under subsection (1) unless the applicant has given the court written notice of his intention to make the application.

Oral evidence may be given on such an application only with the leave of the court or by its order; and the court shall grant leave or make an order only if it appears to it, having regard to any matters stated in the application for leave, that the interests of justice require it to do so.

No leave or order under subsection (4) shall be granted or made in relation to oral evidence from a child or mentally incapacitated person who is alleged— (Amended 81 of 1997 s. 59)

If the court grants leave permitting, or makes an order requiring, a person to give oral evidence, but that person does not do so, the court may disregard any document indicating the evidence that he might have given.

Subject to section 81E(3), a discharge under this section shall be deemed to be an acquittal.

The Chief Judge may make rules or give directions for the purposes of this section and, without prejudice to the generality of this subsection, the rules or directions may make provision— (Amended 10 of 2005 s. 17)

Rules or directions made under subsection (8) shall not have effect until approved by the Legislative Council and published in the Gazette.

Subject to the provisions of the Pawnbrokers Ordinance (Cap. 166), where any person is convicted of an indictable offence, any property found in his possession, or in the possession of any other person for him, may be ordered by the court or magistrate to be delivered to the person who appears to the court or magistrate to be entitled thereto. (Replaced 17 of 1930 s. 8)

Nothing in this section shall prevent any magistrate or the court from ordering the return to any person charged with an indictable offence, or to any person named by the magistrate or the court, of any property found in the possession of the person so charged or in the possession of any other person for him, or of any portion thereof, if the magistrate or the court is of opinion that such property or portion thereof can be returned consistently with the interests of justice and with the safe custody or otherwise of the person so charged. (Amended 5 of 1924 Schedule; 17 of 1930 s. 8)

Where a person is convicted of an offence before the court and it appears to the court that—

the court may, in addition to dealing with the offender in any other way (but not if it makes a compensation order against him under section 73), make an order, to be called a criminal bankruptcy order, against him in respect of the offence or, as the case may be, that offence and any other relevant offences.

A criminal bankruptcy order shall specify—

A criminal bankruptcy order may be made against 2 or more offenders in respect of the same loss or damage.

The Chief Executive in Council may by order amend subsection (1)(b) by substituting, for the amount specified therein, such amount as may be specified in the order. (Amended 39 of 1999 s. 3)

No appeal shall lie against the making of a criminal bankruptcy order.

Where a person successfully appeals to the Court of Appeal against his conviction of an offence by virtue of which such an order was made, the Court of Appeal shall rescind the order unless he was convicted in the same proceedings of another offence of which he remains convicted and a criminal bankruptcy order could have been made without reference to loss or damage caused by the first-mentioned offence; and where, accordingly, the Court of Appeal does not rescind the order it shall amend it by striking out so much of it as relates to loss or damage caused by the offence in respect of which the conviction is quashed.

Where on an appeal by a person against his conviction of an offence by virtue of which a criminal bankruptcy order was made the Court of Appeal substitutes a verdict of guilty of another offence, the Court of Appeal shall—

Where the Court of Appeal rescinds or amends a criminal bankruptcy order, the rescission or amendment shall not take effect—

For the purposes of subsection (4) an appeal to the Court of Final Appeal shall be treated as pending until any application for leave to appeal is disposed of and, if leave to appeal is granted, until the appeal is disposed of; and if no application for leave to appeal is made before the expiration of 14 days from the date of the decision of the Court of Appeal, the rescission or amendment shall take effect at the end of that time. (Amended 79 of 1995 s. 50)

At the end of each month or as soon as conveniently may be thereafter, a copy of the calendar of sentences, under the hand of a judge and the seal of the court, shall be transmitted by the Registrar to the Chief Secretary for Administration. (Amended 63 of 1971 s. 5; L.N. 362 of 1997)

A similar copy shall also be transmitted by the Registrar to the Commissioner of Correctional Services, who shall record the same, and such calendar shall be a sufficient warrant for receiving and detaining all prisoners named therein, and for carrying into effect all sentences set forth therein, other than sentences of death. (Amended 5 of 1924 s. 12; 25 of 1937 s. 3; G.N. 678 of 1938)

In the event of the copy of a calendar kept by the Commissioner of Correctional Services being lost or destroyed, a fresh copy, signed and sealed as above mentioned, shall be delivered by the Registrar to the Commissioner of Correctional Services and shall have the same effect as the copy first given to that officer. (Amended 5 of 1924 s. 12; 25 of 1937 s. 3; G.N. 678 of 1938)

At the end of each day’s sitting of the court, the Registrar shall deliver to the Commissioner of Correctional Services or his deputy a certificate, in Form 5 in Schedule 1, of all sentences passed by the court during that day. (Amended 50 of 1911 s. 4; 8 of 1912 s. 52; 5 of 1924 s. 12; 25 of 1937 s. 3; G.N. 678 of 1938; 63 of 1971 s. 6; 58 of 1994 s. 4)

Such certificate shall be a sufficient warrant to the Commissioner of Correctional Services for receiving into his custody all prisoners named therein, and for carrying into effect all sentences described therein, other than sentences of death, until the calendar of sentences for that month is received by him. (Amended 5 of 1924 s. 12; 25 of 1937 s. 3; G.N. 678 of 1938; 63 of 1971 s. 6)

If a person has committed an arrestable offence, any other person who, knowing or believing him to be guilty of the offence or of some other arrestable offence, does, without lawful authority or reasonable excuse, any act with intent to impede his apprehension or prosecution shall be guilty of an offence.

If on the trial of an indictment for an arrestable offence the jury are satisfied that the offence charged (or some other offence of which the accused might on that charge be found guilty) was committed, but find the accused not guilty of it, they may find him guilty of any offence under subsection (1) of which they are satisfied that he is guilty in relation to the offence charged (or that other offence).

A person guilty of an offence under subsection (1) shall be liable—

No proceedings shall be instituted for an offence under subsection (1) except with the consent of the Secretary for Justice. (Amended L.N. 362 of 1997)

Nothing in subsection (4) shall prevent the arrest, or the issue of a warrant for the arrest, of any person for an offence under subsection (1), or the remand in custody or on bail of a person charged with such an offence.

If a person has committed an arrestable offence, any other person who, knowing or believing that the offence or some other arrestable offence has been committed, and that he has information which might be of material assistance in securing the prosecution or conviction of an offender for it, accepts or agrees to accept for not disclosing that information any consideration shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 2 years.

If a person causes any wasteful employment of the police by knowingly making to any person a false report tending to show that an offence has been committed, or to give rise to apprehension for the safety of any person or property, or tending to show that he has information material to any police inquiry he shall be guilty of an offence and shall be liable on conviction to a fine at level 1 and to imprisonment for 6 months. (Amended E.R. 4 of 2021)

No prosecution shall be instituted for an offence under subsection (1) except with the consent of the Secretary for Justice. (Amended L.N. 362 of 1997)

The compounding of an offence shall not be an offence otherwise than under this section. (Amended 6 of 2024 s. 145)

(Repealed 50 of 1991 s. 4)

It shall not be necessary in an indictment, charge, complaint or information alleging an offence to negative any exception or exemption from or qualification to the operation of the law creating the offence.

For the avoidance of doubt it is hereby declared that in criminal proceedings—

This section applies to criminal proceedings in the District Court or a magistrate’s court.

The matters to which subsection (2) applies are any licence, permit, certificate, authorization, permission, lawful or reasonable authority, purpose, cause or excuse, exception, exemption, qualification or other similar matter.

Where, in any document in any proceeding under this Ordinance, it is necessary to state the ownership of any property which belongs to or is in possession of more than one person, it shall be sufficient to name one of such persons and to state such property to belong to the person so named and another or others, as the case may be.

Where, in any such document, it is necessary to mention, for any purpose whatsoever, any partners or other joint owners or possessors, it shall be sufficient to describe them in manner aforesaid.

The provisions of this section shall be construed to extend to all joint-stock companies and associations, societies, and trustees.

[cf. 1826 c. 64 s. 14 U.K.]

(Repealed 5 of 1971 s. 9)

Any person may arrest without warrant any person whom he may reasonably suspect of being guilty of an arrestable offence. (Replaced 70 of 1967 s. 2)

Any person to whom any property is offered to be sold, pawned, or delivered, and who has reasonable ground to suspect that any arrestable offence has been or is about to be committed on or with respect to such property, may, and, if he can, shall, without warrant, apprehend the person offering the same and take possession of the property so offered. (Amended 70 of 1967 s. 2)

Every person who finds any person in possession of any property which he, on reasonable grounds, suspects to have been obtained by means of an arrestable offence may arrest such last-mentioned person without warrant and take possession of the property. (Amended 70 of 1967 s. 2)

Every person who arrests any person under any of the provisions herein contained shall (if the person making the arrest is not himself a police officer) deliver the person so arrested, and the property, if any, taken possession of by him, to some police officer in order that he may be conveyed as soon as reasonably may be before a magistrate, to be by him dealt with according to law, or himself convey him before a magistrate, as soon as reasonably may be, for that purpose. (Amended 51 of 1911; 2 of 1912 Schedule)

Nothing in this section shall affect the powers of apprehension conferred upon constables or other persons by any other enactment. (Amended 51 of 1911; 2 of 1912 Schedule)

A person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

Subsection (1) shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

Where—

then that power or duty or that reference shall be deemed to be also exercisable or performable consequent upon a conviction of, or include a reference to, as the case may be—

Subsection (1) shall apply to powers of imposing pecuniary penalties and of forfeiture, seizure and search, and to powers and discretions to cancel, suspend or refuse to issue any licence, permit or other authorization, but nothing in this section shall be deemed to authorize the imposition of any sentence of imprisonment otherwise than in default of payment of any pecuniary penalty which may be imposed by virtue of this section. (Amended 24 of 1993 s. 13)

Subject to subsections (2) and (5), where a person is convicted of an offence which is an indictable offence and for which no penalty is otherwise provided by any Ordinance, he shall be liable to imprisonment for 7 years and a fine. (Amended 12 of 1986 s. 2; 50 of 1991 s. 4(1); 49 of 1996 s. 6; 10 of 2008 s. 15)

Where a person is convicted of—

to commit an offence for which a maximum penalty is provided by any Ordinance, and no penalty is otherwise provided by any Ordinance for such conspiracy or incitement, he shall be liable to be sentenced to that maximum penalty. (Amended 12 of 1986 s. 2)

(Repealed 24 of 1993 s. 14)

(Repealed 49 of 1996 s. 6)

Where a person is convicted of an offence of perverting the course of justice at common law, he shall be liable to be sentenced at the discretion of the court to imprisonment for any term and a fine of any amount, subject to any limitations as to the maximum term or terms of imprisonment and the maximum fine which such court may lawfully impose under the District Court Ordinance (Cap. 336) or the Magistrates Ordinance (Cap. 227). (Added 10 of 2008 s. 15)

Subject to subsection (2), where an act or omission is an offence and the penalty for the offence is amended between the time a person commits an offence and he is convicted of the offence, the offender is liable to the penalty prescribed at the time of the offence.

If the amended penalty is a lighter penalty, the offender is liable to the lighter penalty.

Where—

then, whether or not the offence was committed or appears to have been committed in Hong Kong, a court may dispose of such property in the manner provided in this section. (Amended 46 of 1977 s. 16)

Of its own motion or upon application, a court may—

Save where the property is perishable, no order for the delivery, sale or forfeiture of property shall be made under subsection (2) unless the court is satisfied that the property will not be required as an exhibit in any proceedings before a court.

Where under subsection (2) a court orders the sale or retention of property, and no person establishes a claim to the property or the proceeds of sale thereof within 6 months from the date such order is made, the property or the proceeds of sale shall become the property of the Government. (Amended 39 of 1999 s. 3)

An order made under subsection (2), other than an order for the retention of property, shall not, except when the property is a live animal, bird or fish or is perishable, be carried out until the period allowed for making an appeal against the order has expired or, where such an appeal is duly made, until the appeal has been finally determined or abandoned.

Where by any other Ordinance it is provided that any particular property or class of property shall or may be forfeited, destroyed or disposed of, then the provisions of such Ordinance shall prevail.

The power conferred on a court by subsection (2)(b)(ii) to order the forfeiture of property shall not apply in respect of immovable property or any aircraft, motor vehicle or ship.

Where the age of any person at any time is material for the purposes of any provision in this Ordinance or any other Ordinance regulating the powers of a court in relation to offenders, his age at the material time shall be deemed to be or to have been that which appears to the court, after considering any available evidence, to be or to have been his age at that time.

Where any person has been convicted on indictment of any offence punishable with imprisonment, and the court is of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other than a nominal punishment, the court may, in lieu of imposing a sentence of imprisonment, make an order discharging the offender conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour and to appear for sentence when called on at any time during such period, not exceeding 3 years, as may be specified in the order. (Amended 12 of 1960 s. 3)

The court may, where it makes an order under this section, further order that the offender shall pay such costs of the proceedings as the court thinks reasonable. (Amended 48 of 1972 s. 4)

In any such case the court or a magistrate, if satisfied by information on oath that the offender has failed to observe any of the conditions of his recognizance, may issue a warrant for his apprehension, or may, if it or he thinks fit, instead of issuing a warrant in the first instance, issue a summons to the offender and his sureties (if any) requiring him or them to attend at such court as may be specified in the summons.

The offender, when apprehended, shall, if not brought forthwith before the court, be brought before a magistrate.

The magistrate before whom an offender on apprehension is brought, or before whom he appears in pursuance of such summons as aforesaid, may remand him in custody or on bail until he can be brought before the court.

An offender so remanded to custody may be committed during remand to a prison, or, if he is a child or young person under the age of 16, to a place of detention provided under the Juvenile Offenders Ordinance (Cap. 226).

The court, on being satisfied that a person bound by his recognizance to appear for conviction and sentence has failed to observe any condition of his recognizance, may forthwith, without further proof of his guilty, convict and sentence him for the original offence.

No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3. (Added 5 of 1971 s. 10A. Amended 58 of 1994 s. 4)

In the case of a person who, before attaining the age of 25 years, is released from imprisonment or completes after such release a period of supervision ordered under section 7(2) of the Prisoners (Release under Supervision) Ordinance (Cap. 325), the Commissioner of Correctional Services shall, subject to subsections (1A) and (2) of this section, make a supervision order under this section if the sentence of imprisonment which that person has served, or in respect of which the order under section 7(2) of that Ordinance was made, was for a term—

No supervision order shall be made under subsection (1) on the release of a person from imprisonment where he is so released subject to supervision under section 7(1) of the Prisoners (Release under Supervision) Ordinance (Cap. 325). (Added 59 of 1987 s. 21)

No supervision order shall be made under subsection (1) on the release of a person in respect of whom— (Amended 24 of 1986 s. 6; 6 of 1990 s. 7)

A supervision order under subsection (1) shall contain conditions that the person against whom it is made shall—

The Commissioner of Correctional Services may at any time cancel or vary the terms of a supervision order under subsection (1).

A supervision order under subsection (1) shall—

A person who fails to comply with a supervision order under subsection (1) shall be guilty of an offence and liable on conviction to a fine at level 2 and to imprisonment for 12 months. (Amended E.R. 4 of 2021)

Where the Commissioner of Correctional Services is satisfied that a person against whom a supervision order under subsection (1) of section 109AA is in force has failed to comply with the order, he may, if such person earned remission under rule 69 of the Prison Rules (Cap. 234 sub. leg. A) in respect of the period of imprisonment which ended on his release from prison referred to in that subsection, make a recall order against him requiring him to return to prison. (Amended E.R. 1 of 2018)

Subject to subsections (3) and (4), a person against whom a recall order is made under subsection (1) may be detained in prison for a period equivalent to the amount of the remission that was earned by him.

The Commissioner of Correctional Services may at any time release a person who is detained pursuant to a recall order under subsection (1).

A recall order under subsection (1) shall cease to have effect where the person against whom it was made—

If a person against whom a recall order is made under section 109AB(1) is at large at the time it is made, he shall be deemed to be unlawfully at large.

A police officer may, if he reasonably suspects that a recall order under section 109AB(1) is in force against a person and that that person is unlawfully at large, arrest him and take him to a prison.

An officer of the Correctional Services Department specified in a supervision order made under section 109AA in respect of a person against whom a recall order has been made under section 109AB(1) or such other officer of that Department as the Commissioner of Correctional Services may substitute for the officer so specified by a variation of the terms of that supervision order may, if he reasonably suspects that that recall order is in force against that person and that that person is unlawfully at large, arrest him and take him to a prison. (Added 14 of 1988 s. 2)

Any period during which a person against whom a recall order under section 109AB(1) is in force is unlawfully at large shall be disregarded in calculating the period for which he may be detained under the recall order, unless the Chief Executive otherwise directs in a particular case. (Amended 39 of 1999 s. 3)

A court which passes a sentence of imprisonment for a term of not more than 2 years for an offence, other than an excepted offence, may order that the sentence shall not take effect unless, during a period specified in the order, being not less than 1 year nor more than 3 years from the date of the order, the offender commits in Hong Kong another offence punishable with imprisonment and thereafter a court having power to do so orders under section 109C that the original sentence shall take effect. (Amended 39 of 1999 s. 3)

A court which passes a suspended sentence on any person for an offence shall not make a probation order in his case in respect of another offence of which he is convicted by or before the court or for which he is dealt with by the court.

On passing a suspended sentence the court—

If a court has passed a suspended sentence on any person, and that person is subsequently sentenced to detention in a training centre, he shall cease to be liable to be dealt with in respect of the suspended sentence unless the subsequent sentence or any conviction or finding on which it was passed is quashed on appeal.

Subject to any provision to the contrary contained in this or any other Ordinance—

If an offender is convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence or if, during such period, he breaks a condition imposed under section 109B(3)(a) and either he is so convicted by or before a court having power under section 109D to deal with him in respect of the suspended sentence or he subsequently appears or is brought before such a court, then, unless the sentence has already taken effect, that court shall consider his case and deal with him by one of the following methods—

and a court shall make an order under paragraph (a) of this subsection unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence, and where it is of that opinion the court shall state its reasons.

Where a court orders that a suspended sentence shall take effect, with or without any variation of the original term, the term of such sentence shall commence on the expiration of another term of imprisonment passed on the offender by that or another court, unless the court is of opinion that, by reason of special circumstances, the sentence should take effect immediately.

In proceedings for dealing with an offender in respect of a suspended sentence which take place before the Court of First Instance any question whether the offender has been convicted of an offence punishable with imprisonment committed during the operational period of the suspended sentence shall be determined by the court and not by the verdict of a jury. (Amended 25 of 1998 s. 2)

Where a court deals with an offender under this section in respect of a suspended sentence the clerk of the court shall notify the clerk of the court which passed the sentence of the method adopted.

Where on consideration of the case of an offender a court makes no order with respect to a suspended sentence, the clerk of the court shall record that fact.

For the purposes of any Ordinance conferring rights of appeal in criminal cases any such order made by a court shall be treated as a sentence passed on the offender by that court for the offence for which the suspended sentence was passed.

An offender may be dealt with in respect of a suspended sentence by any court before which he appears or is brought.

Where an offender is convicted by a magistrate of an offence punishable with imprisonment and the magistrate is satisfied that the offence was committed during the operational period of a suspended sentence passed by the Court of First Instance or the District Court— (Amended 25 of 1998 s. 2)

The court to which a magistrate commits an offender under subsection (2) shall be the court by which the suspended sentence was passed, except that the magistrate may commit him to some other court if, having regard to the time when and the place where he is likely to be dealt with in respect of the suspended sentence by the court by which that sentence was passed, it would be more convenient that he should be dealt with by that other court.

For the purpose of this section and section 109E a suspended sentence passed on an offender on appeal shall be treated as having been passed by the court by which he was originally sentenced.

If it appears to a judge, a District Judge or a magistrate that an offender has been convicted in Hong Kong of an offence punishable with imprisonment committed during the operational period of a suspended sentence and that he has not been dealt with in respect of the suspended sentence, the judge, District Judge or magistrate may issue a summons requiring the offender to appear at the place and time specified therein, or may, subject to the following provisions of this section, issue a warrant for his arrest. (Amended 39 of 1999 s. 3)

A magistrate shall not issue a summons under this section except on information and shall not issue a warrant under this section except on information in writing and on oath.

A summons or warrant issued under this section shall direct the offender to appear or to be brought before the court by which the suspended sentence was passed, but if a warrant is so issued requiring him to be brought before the Court of First Instance or the District Court and he cannot forthwith be brought before that court because that court is not being held, the warrant shall have effect as if it directed him to be brought before a magistrate and the magistrate shall commit him in custody or on bail to the Court of First Instance or District Court. (Amended 25 of 1998 s. 2)

The Registrar shall, once a month, make out a list or lists of persons bound by recognizance to appear or to do any other thing, or who have been bound for the appearance of any other person or for his doing any other thing, and who have made default, or whose principal, or other person for whom they are so bound, has made default, to appear or to do such other thing; and the Registrar shall, if he is able to do so, state the cause why such default has been made. (Amended 50 of 1911; 1 of 1912 Schedule; 17 of 1931 s. 2; 63 of 1971 s. 7)

The list or lists so made out shall be examined, and, if necessary, corrected and signed by the judge, and shall be delivered by the Registrar to the bailiff. (Amended 17 of 1931 s. 2)

[cf. 1826 c. 64 s. 31 U.K.]

Where a person is convicted of any offence, other than an offence for which the sentence is fixed by law, the court may, if it is not precluded from sentencing him by the exercise of some other power (such as the power to make a probation order under section 3 of the Probation of Offenders Ordinance (Cap. 298)), impose a fine in lieu of or in addition to dealing with such person in any other way in which the court has power to deal with him, subject however to any enactment requiring him to be dealt with in a particular way.

If the court imposes a fine on any person under subsection (1), the court may make an order—

If the court imposes a fine on any person under subsection (1), the court shall make an order fixing a term of imprisonment not exceeding 12 months which that person is to undergo if any sum which he is liable to pay is not duly paid.

Where an Ordinance provides for a fine for an offence by reference to a level, the fine applicable for the offence is the amount shown for that level in Schedule 8.

Where a provision in an Ordinance specifies a level of fine that may be prescribed under subsidiary legislation, the level specified is a reference to the level as set out in Schedule 8.

The Chief Executive in Council may by regulation amend the amounts set out in Schedule 8 to reflect his opinion of the effect of inflation on the value of the amounts set out in the Schedule since the date when the Schedule came into operation or since the date that the amounts in the Schedule were last amended. (Amended 39 of 1999 s. 3)

Where an Ordinance provides for a fine, other than an excluded fine, for an offence expressed as an amount of money, the fine shall be deemed to be a fine at the level relevant to the amount of the fine in the following table—

Table

Where a provision in an Ordinance specifies a fine, other than an excluded fine, expressed as an amount of money that may be prescribed under subsidiary legislation, the fine shall be deemed to be a fine at the level relevant to the amount of the fine in the table in subsection (2).

The Chief Executive in Council may by regulation amend the amounts set out in the table in subsection (2) to reflect his opinion of the effect of inflation on the value of the amounts set out in the table since the date when this section came into operation or since the date that the amounts in the table were last amended. (Amended 39 of 1999 s. 3)

(Repealed 13 of 2011 s. 36)

Subject to the provisions of this section, where a fine is imposed by, or a recognizance is forfeited before, a court, an order may be made in accordance with the provisions of this section—

Where any person liable for the payment of a fine or a sum due under a recognizance to which this section applies is sentenced by the court to, or is serving or otherwise liable to serve, a term of imprisonment, the court may order that any term of imprisonment fixed under subsection (1)(c) shall not begin to run until after the end of the first-mentioned term of imprisonment.

The power conferred by this section to discharge a recognizance or reduce the amount due thereunder shall be in addition to the powers conferred by any other enactment relating to the discharge, cancellation, mitigation or reduction of recognizances or sums forfeited thereunder.

Where any such order as aforesaid is made directing payment by instalments of a fine or the amount due under a recognizance, and default is made in the payment of any one instalment, the same proceedings may be taken as if default had been made in payment of all the instalments then remaining unpaid.

Where any such order as aforesaid is made fixing a term of imprisonment in default of payment of a fine or the amount due under a recognizance, then—

In reducing the number of days in the term of imprisonment under subsection (5)(b), the term of such imprisonment to be reduced shall be deemed, at any given time, to have been reduced by any period of remission earned under the Prison Rules (Cap. 234 sub. leg. A).

Whenever the Chief Executive is pleased to grant to any offender a pardon under the public seal, the Registrar shall be bound, on the direction of the Chief Executive, to record such pardon in the book to be kept by him for that purpose and to endorse such pardon with the word “Recorded” and with his signature. (Amended 50 of 1911; 21 of 1912 s. 2; 39 of 1999 s. 3)

Every such pardon shall be valid and effectual for all purposes whatsoever, and it shall be the duty of all courts, judges, magistrates, officers, and others, on production thereof, to take notice of and to give effect to the same.

Any judge, District Judge or magistrate may, if he considers it necessary in the interests of justice or public order or security, direct that, save as provided in subsection (3) or with the permission of a public officer acting under his direction, no person shall be in the court in which such judge, District Judge or magistrate sits in the exercise of his criminal jurisdiction or in the building, or within the curtilage of the building, in which that court sits.

The Chief Justice may, if he considers it necessary in the interests of justice or public order or security, direct that, save as provided in subsection (3) or with the permission of a public officer acting under his direction, no person shall be in any court hearing any criminal proceedings or in any building, or within the curtilage of any building, in which that court sits.

Subsections (1) and (2) shall not apply to a person who is required to be in any such court or any such building by virtue of his office or profession or an order of a court or who is otherwise required for the purposes of any proceedings, whether civil or criminal, to be in any such court or any such building or to any one person representing a newspaper or news agency.

Any person who contravenes any direction of a judge, District Judge or magistrate under subsection (1) or of the Chief Justice under subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine at level 2 and to imprisonment for 6 months and may be forcibly removed by any police officer from the court or building or the curtilage of the building, as the case may be. (Amended E.R. 4 of 2021)

Notwithstanding any other law, the exclusion of persons from any court or any building by or in accordance with a direction of a judge, District Judge or magistrate under subsection (1) or of the Chief Justice under subsection (2) shall not affect the validity of the proceedings of that court or of any court which sits in that building as the case may be.

Nothing in subsection (1) or (2) shall derogate from or affect the power of any judge, District Judge or magistrate to order the exclusion from the court in which he sits of members of the public where the proper administration of justice so requires.

Notwithstanding any other law but subject to the provisions of the Hong Kong Bill of Rights Ordinance (Cap. 383), if it appears to a court that it is necessary so to do for a purpose mentioned in subsection (1AA), the court may order that the whole of the proceedings before it in respect of any offence or, having regard to the reason for making such an order, any appropriate part of such proceedings shall take place in a closed court. (Replaced 68 of 1995 s. 10)

The purpose is—

In any case where a court may make an order under subsection (1), the court may, whether or not it makes an order under that subsection, order that no question shall be put to any specified witness in the proceedings before it if the answer thereto would lead, or tend to lead, to disclosure of the name or address of any witness in the proceedings; but the court may require any such witness to record the name and address of a witness in the proceedings in writing and to deliver it into the custody of the court. (Replaced 35 of 1976 s. 15)