Criminal Procedure (Appeal against Discharge) Rules
[23 December 1983]
(Format changes—E.R. 6 of 2019)
These rules may be cited as the Criminal Procedure (Appeal against Discharge) Rules.
In these rules—
appeal (上訴) means an appeal by the Secretary for Justice to the Court of Appeal against a person’s discharge in pursuance of section 81E; (L.N. 362 of 1997) respondent (答辯人) in relation to any appeal means the person against whose discharge the appeal is made.The court may use either official language in any appeal or a part of an appeal before it as it considers appropriate for the just and expeditious disposal of the appeal.
The decision of the court under paragraph (1) is final.
A party to or a witness in any appeal or a part of an appeal before the court may—
use either or both of the official languages; and
address the court or testify in any language.
A legal representative in an appeal or a part of an appeal before the court may use either or both of the official languages.
Documents filed in an appeal or served on a party to an appeal may be in either official language.
A party, other than the Secretary for Justice, served with a document relating to an appeal in an official language with which he is not familiar may within 3 days of being served request in writing the Secretary for Justice to provide a translation of the document into the other official language. (L.N. 362 of 1997)
The Secretary for Justice shall provide a translation as soon as practicable. (L.N. 362 of 1997)
The time for compliance with any rule or order requiring the taking of the next step in an appeal within a particular period shall start to run, if a request in writing is served under paragraph (6), only after the receipt of a translation or as ordered by the court under this rule.
The official record of an appeal shall be kept in the official language or official languages as the court hearing the appeal may direct.
The transcript of proceedings for appeal purposes shall be prepared in the official language that the appeal court directs.
A notice of appeal shall be in the form prescribed in the Schedule, or as near thereto as circumstances permit, and shall—
set out the grounds thereof;
where the appeal is on any ground which involves a question of law specify the question of law referred to and, where appropriate, such facts of the case as are necessary for the proper consideration of the question of law;
summarize the arguments intended to be put to the Court of Appeal; and
specify the authorities intended to be cited.
Notice of appeal shall be given within 21 days of the discharge.
The Secretary for Justice shall, unless the respondent cannot be found or is outside Hong Kong, cause to be served on the respondent notice of the appeal, which shall also invite the respondent, within such period as may be specified in the notice (being not less than 28 days from the date of service of the notice), to inform the Registrar if he wishes to present any argument to the Court of Appeal and, if so, whether he desires to present such argument by counsel on his behalf or desires to seek leave to appear in person.
The Court of Appeal shall not hear argument by or on behalf of the Secretary for Justice until the period specified in the notice has expired unless the respondent agrees or has indicated that he does not wish to present any argument to the court.
The Secretary for Justice may withdraw or amend the notice of appeal at any time before the Court of Appeal begins the hearing, or, after that, and until the court gives its opinion, may withdraw or amend the notice of appeal by leave of the court, and any notice of such withdrawal or amendment shall, if the court or Registrar so directs, be served on— (L.N. 362 of 1997)
the respondent; and
an amicus curiae appointed under section 81D(2)(c) as read with section 81E(5).
Unless the Court of Appeal, on the application of the respondent, otherwise directs, no person shall publish in Hong Kong a written report, or broadcast in Hong Kong a report, of any proceedings on an appeal containing any matter other than that permitted by paragraph (3).
Notwithstanding paragraph (1), a report of proceedings on an appeal containing matter other than that permitted by paragraph (3) may be published where the Court of Appeal either disallows the appeal or allows the appeal but does not quash the acquittal of the respondent and order him to be tried.
A report of proceedings on appeal may contain—
the identity of the court and the names of the judges thereof;
such details concerning the proceedings on the application under section 16 to which the appeal relates as may lawfully be published or broadcast in accordance with the Criminal Procedure (Applications under Section 16) Rules (Cap. 221 sub. leg. G); (E.R. 6 of 2019)
the grounds of the appeal or a summary thereof;
the names of counsel and solicitors engaged in the proceedings;
any decision of the Court of Appeal on the disposal of the appeal and, in the event of the Court of Appeal determining that the respondent is to be tried, the charge upon which he is to be tried;
where the proceedings on appeal are adjourned, the date to which they are adjourned;
whether legal aid was granted to the respondent.
For the purpose of these rules service of a document on the respondent may be effected—
in the case of a document to be served on a body corporate, by delivering it to the secretary of the body at its registered or principal office or sending it by registered post or the recorded delivery service addressed to the secretary of that body at that office;
in the case of a document to be served on any other person, by—
delivering it to the person to whom it is directed; or
leaving it for him with some person at his last known or usual place of residence or business; or
sending it by registered post or the recorded delivery service addressed to him at his last known or usual place of residence or business.
(Chapter 221)Notice of Appeal against Discharge
| To: | 1. | The Registrar, High Court, Hong Kong; |
| 2. | . of | |
| (here insert name and address of the respondent) |
PART I
| WHEREAS the respondent was on the . day of | |
| . 19 . committed for trial on a charge of/charges of . and on the . day of . 19 . on application to the Court of First Instance under section 16 of the Ordinance a judge directed that he should not be arraigned on the said charge(s) and directed that he should be discharged; | |
| NOW THEREFORE the Secretary for Justice appeals against the said discharge on the grounds | |
| Note | Attention is drawn to rule 3(1). The particulars required by that rule |
| may be annexed as a Schedule to this form. | |
PART II
| To the Respondent: | |
| 1. | You are invited within . days of the service of this notice upon you to inform the Registrar if you wish to present any argument to the Court of Appeal. If you wish to present any argument you should also inform the Registrar whether you desire to present such argument by counsel or desire to seek leave to appear in person. |
| 2. | If you are not already legally aided you may be entitled to apply to the Director of Legal Aid for legal aid. Should you desire legal aid you should contact the Director at the following address |
| Dated the . day of . 19 . | |