To make provision for the trial of complex commercial crimes.
[8 July 1988]
(Format changes—E.R. 5 of 2021)
This Ordinance may be cited as the Complex Commercial Crimes Ordinance.
In this Ordinance, unless the context otherwise requires—
court (法院) means the Court of First Instance acting in the exercise of its criminal jurisdiction; (Amended 25 of 1998 s. 2) defence response (答辯書) has the meaning given to it in section 16; judge (法官) means a judge or a deputy judge of the court; order of transfer (移交令) means an order made under section 4 transferring proceedings to the court; preparatory hearing (預審) means a preparatory hearing under Part III; prosecution case statement (檢控論據書) has the meaning given to it in section 13; Registrar (司法常務官) means the Registrar of the High Court. (Amended 25 of 1998 s. 2)(Amended 25 of 1998 s. 2)
Where—
a person is accused before a magistrate of an indictable offence; and
the Secretary for Justice is of the opinion that the evidence of the offence—
would be sufficient for the accused to be committed for trial; and
reveals a case of fraud or dishonesty in a commercial context, of such seriousness and complexity that it is appropriate that it be transferred to the court pursuant to this Ordinance,
the Secretary for Justice may apply to the magistrate for an order of transfer.
In an application under subsection (1), the Secretary for Justice may also apply to have other indictable offences alleged against the accused which do not fall within subsection (1)(b)(ii) transferred to the court as part of the same proceedings.
An application under this section may not be made after the accused has been asked, under section 80C(1) of the Magistrates Ordinance (Cap. 227), whether or not he elects to have the charge against him heard at a preliminary inquiry under that Ordinance.
(Amended L.N. 362 of 1997)
Upon the making of an application under section 3 the magistrate shall make an order (an order of transfer) transferring the proceedings to the court. (Amended E.R. 5 of 2021)
An order of transfer shall operate as a stay of proceedings before the magistrate touching the information or complaint to which the order refers and all process relating to the transferred proceedings shall be transmitted to the court.
Where a magistrate makes an order of transfer he shall—
inform the accused that thereafter this Ordinance shall apply to his case;
inform the accused, unless he is already in receipt of legal aid, of his right to apply for legal aid;
warn the accused that at his trial he may not be permitted to give evidence of an alibi or call witnesses in support of an alibi unless he has earlier given particulars of the alibi and of the witnesses in accordance with section 65D of the Criminal Procedure Ordinance (Cap. 221), and if it appears to the magistrate that the accused may not understand the meaning of the term alibi, he shall explain it to him; and (Amended E.R. 5 of 2021)
inform the accused that he has the right to apply to a judge for discharge in accordance with this Ordinance on the grounds that there is no prima facie case against him.
Where the magistrate has given the information required by subsection (3)(a), the clerk of the court shall give the accused written notice of the provisions of sections 9 and 25 of this Ordinance.
Where the magistrate has given the warning required by subsection (3)(c), the clerk of the court shall give the accused written notice of the provisions of section 65D of the Criminal Procedure Ordinance (Cap. 221).
Within 7 days after an order of transfer is made, the magistrate shall deliver it to the Registrar.
Subject to section 65D(3) of the Criminal Procedure Ordinance (Cap. 221), no court shall inquire into whether or not the requirements of subsections (3), (4), (5) and (6) have been complied with.
Neither a decision of the Secretary for Justice to apply for an order of transfer nor an order of transfer shall be subject to appeal or liable to be questioned in any court.
(Amended L.N. 362 of 1997)
The Secretary for Justice shall, within 7 days after the date of the making of the order of transfer, serve on the accused and deliver to the Registrar, for the purposes of section 9(1), a summary of the evidence on which each charge to which section 3(1) relates is based.
(Amended L.N. 362 of 1997)
Where the accused is in custody when an order of transfer is made, the magistrate may—
order that he be kept in custody until such date as the court may require him to stand his trial; or
release him on bail in any case where he has power to admit a person charged with an indictable offence to bail under the Magistrates Ordinance (Cap. 227).
Where the accused is on bail when an order of transfer is made any requirement that he must appear before the magistrate on a return day shall cease upon the making of the order and he shall instead be required to appear before the Court of First Instance on the day fixed by the Registrar for the commencement of the trial. (Amended 25 of 1998 s. 2)
If a magistrate orders that the accused be kept in custody under this section he shall inform him of his right to apply to a judge for bail.
Where proceedings are transferred to the court under section 4, the Secretary for Justice shall sign and serve on the accused and deliver to the Registrar an indictment setting forth the count or counts preferred against the accused. (Amended L.N. 362 of 1997)
The indictment shall be served on the accused and delivered to the Registrar within 7 days after the date of the making of the order of transfer.
Where it appears to a judge that the indictment delivered under section 8 and the summary of evidence delivered under section 6, reveal, in respect of the count or counts to which section 3(1) relates, a case of fraud or dishonesty in a commercial context, of such seriousness and complexity that substantial benefits are likely to accrue from a hearing (a preparatory hearing) before the jury is empanelled, for the purpose of— (Amended E.R. 5 of 2021)
identifying issues which are likely to be material to the verdict of the jury;
assisting the jury’s comprehension of any such issues;
expediting the proceedings before the jury; or
assisting the judge’s management of the trial,
he may order that such a hearing shall be held in respect of the count or counts to which section 3(1) relates.
The judge may make an order under subsection (1) on the application either of the prosecutor or of the person indicted or of his own motion.
At a preparatory hearing the judge may—
exercise all of the powers specified in this Part and, subject to this Part, make any order which he is empowered to make under this Ordinance;
determine any question of law relating to the case including any question as to the admissibility of evidence; and
prescribe the period within which notice of particulars of alibi under section 65D of the Criminal Procedure Ordinance (Cap. 221) is required to be given.
An order made at a preparatory hearing shall have effect for the purposes of the trial except to the extent that the judge in the interests of justice varies or discharges that order.
Any order made at a preparatory hearing may specify the time within which it is to be complied with.
A preparatory hearing may from time to time be adjourned by the judge to a time and place appointed by him.
Nothing in this section shall derogate from the discretion of the court to sever any indictment and order the separate trial of any count or counts of the indictment.
An order for the holding of a preparatory hearing made by a judge under section 9(1) shall not be subject to appeal or liable to be questioned in any court.
If a judge orders a preparatory hearing to be held the trial shall commence with that hearing.
At the commencement of a preparatory hearing the indictment shall be read over to the accused, and explained to him if necessary; the accused may plead to the indictment at that time or may defer his plea but he shall, unless he has already done so, be required to plead to the indictment before the jury is empanelled.
After the indictment has been read over to the accused and the accused has been given the opportunity of pleading thereto under section 12, the judge may order the prosecutor to serve on the accused and deliver to the court the following documents—
a statement containing—
a concise account of the facts; and
the inferences sought to be drawn from those facts,
on which the prosecution case is based (a prosecution case statement); (Amended E.R. 5 of 2021)
copies of the statements of the witnesses (including expert witnesses) whom the prosecutor intends to call at the trial after the jury has been empanelled;
a list of exhibits, and copies of any documentary exhibits, that the prosecutor intends to have produced at the trial after the jury has been empanelled;
a statement of any proposition of law specifically applicable to the prosecution case on which the prosecutor proposes to rely; and
any other explanatory document the judge considers appropriate.
The prosecutor may amend the prosecution case statement before the jury is empanelled—
without the leave of the judge, before the accused has served and delivered a defence response under section 16;
only with the leave of the judge, after the accused has served and delivered a defence response under section 16.
The judge shall not grant leave under subsection (2) unless he is satisfied—
that the need for the amendment to the prosecution case statement arises from circumstances beyond the control of the prosecutor which could not have been foreseen at the time the original prosecution case statement was served and delivered; and
that it is in the interests of justice that such leave should be granted.
Where an amendment is made under subsection (2) the prosecutor shall serve on the accused and deliver to the court a copy of the amended prosecution case statement.
Where an amended prosecution case statement has been served and delivered under subsection (4) the accused may, with the leave of the judge, at the preparatory hearing withdraw any admission made by him under this Part before the service on him of the amended prosecution case statement.
The judge may order the prosecutor to prepare explanatory material in such a form as appears to the judge to be likely to aid comprehension by the jury, and to deliver it to the court and serve it on the accused in that form.
Nothing in subsection (1) shall entitle the accused to receive a copy of any document which has already been served on him under section 80B(1) of the Magistrates Ordinance (Cap. 227).
A statement of a witness of which a copy is served and delivered under subsection (1) shall—
be signed by the person who made it;
contain a declaration by the witness to the effect that it is true to the best of his knowledge and belief and, if the statement was made in Hong Kong, that he made the statement knowing that the making of a false statement is an offence under section 33 of the Crimes Ordinance (Cap. 200);
if made by a person under 21, give his age;
purport to have been read over to the person who made the statement in the language used by that person in making the statement or to have been read by that person.
Where a person refuses to make or sign a statement for the purposes of subsection (1), the prosecutor, if he desires to call that person as a witness, shall, in place of such a statement, serve and deliver under subsection (1) a statement of the evidence the prosecutor believes that person will give.
The judge may order any document served and delivered under subsection (1) to be translated into English or Chinese or both such languages, as he considers appropriate.
An exhibit which is mentioned in the list of exhibits served and delivered under subsection (1) shall be clearly identified in a statement of a witness of which a copy is served and delivered under that subsection and the accused shall be given reasonable opportunity to examine any such exhibit.
Failure to comply with subsection (8) or (11) (or with any order made under subsection (10)) shall not render the service or delivery of any documents under subsection (1) ineffective where the judge is satisfied that the accused is not substantially prejudiced by such failure.
The accused may object to the introduction of evidence after the jury has been empanelled which could not reasonably be anticipated having regard to the prosecution case statement, and, if it appears to the judge that the evidence could not have been so anticipated, he may exclude such evidence, unless it appears to him that there is adequate reason for not including in the prosecution case statement mention of the fact to which that evidence relates.
Subject to subsection (13), nothing in this Ordinance shall derogate from the right of the prosecutor to introduce evidence at the trial after the jury is empanelled which is not contained or mentioned in the documents served and delivered under this section.
Where a prosecution case statement has been served and delivered under section 13(1) the judge may order the accused to serve on the prosecutor and deliver to the court a notice stating any objection he has to the prosecution case statement on the ground that it does not disclose the prosecution case with sufficient particularity to enable him to present his defence.
The judge may order the prosecutor to amend a prosecution case statement from time to time if it appears to him to be appropriate having regard to the notice of objection (if any) served and delivered under subsection (1) and to any notice of additional evidence served on the accused by the prosecutor.
Where an order made under section 13(1) and any order made under section 14(2) have been complied with, the judge may order the accused to serve on the prosecutor and deliver to the court a notice stating any objection he has to the evidence contained in the documents served and delivered under section 13(1) being admitted at the trial after the jury has been empanelled.
Where the prosecutor has served notice on the accused that he wishes to introduce further evidence at the trial and has served on the accused and delivered to the court a copy of such further evidence, the judge may order the accused to serve on the prosecutor and deliver to the court a notice stating any objection he has to such evidence being admitted at the trial after the jury has been empanelled.
A notice of objection served and delivered under this section shall contain particulars of the evidence objected to and state the ground of the objection.
The judge shall determine the admissibility of the evidence objected to, having regard to—
the documents served and delivered under section 13(1);
the documents served and delivered under subsection (2);
the notice of objection;
any evidence given on behalf of the prosecutor or accused; and
any representations made by the prosecutor and the accused.
Where the admissibility of evidence contained in the documents served and delivered under section 13(1) or in respect of which a judge has made an order under subsection (2) which could have been objected to under subsection (1) or (2), is objected to after the jury is empanelled, the judge may (without prejudice to the general power to make an order as to the payment of costs under section 25) order the accused to pay to the prosecutor the additional costs properly incurred by the prosecutor as a consequence of the determination of the admissibility of that evidence after the jury is empanelled.
Where all objections, notice of which is served and delivered under sections 14 and 15, have been dealt with, the judge may order the accused to serve on the prosecutor and deliver to the court—
a written statement (a defence response) indicating, with reference to the prosecution case statement, the facts and inferences on which he takes issue with the prosecution; (Amended E.R. 5 of 2021)
a written statement of all propositions of law in reply to any propositions of law stated by the prosecutor under section 13(1)(d); and
copies of the statements of any expert witnesses whom he intends to call at the trial after the jury has been empanelled.
Except to the extent that disclosure is required by section 65D of the Criminal Procedure Ordinance (Cap. 221) a defence response need not disclose—
the identity of any defence witness, other than an expert witness; or
whether the accused will give evidence.
Where the prosecution case statement has been amended under section 13(2) after the judge has made an order under subsection (1), the accused may amend any defence response served and delivered pursuant to that order so that it indicates with reference to the amended prosecution case statement the facts and inferences on which he takes issue with the prosecutor and, where he does so, he must serve on the prosecutor and deliver to the court a copy of the amended defence response.
The judge may at a preparatory hearing order the prosecutor to serve on the accused and give to the court notice of—
those documents the truth of the contents of which ought in the prosecutor’s view to be admitted and of any other matters which in his view ought to be agreed;
those documents which ought in the prosecutor’s view to be admitted as evidence without further proof.
Where the judge has ordered the prosecutor to serve and deliver a notice under subsection (1) and such notice has been served and delivered, he may order the accused to serve on the prosecutor and deliver to the court a notice in reply to the notice served by the prosecutor—
admitting the truth of the contents of any document or part thereof;
agreeing to any matters;
agreeing to the admission of any document as evidence without further proof,
as may be specified in the notice, or, if he refuses to so admit or agree, stating the reasons for his refusal.
Where an accused is required to serve and deliver a notice under subsection (2) and he wishes to refuse to make an admission or come to an agreement, it is sufficient, if the document, fact or matter to which his refusal relates is central to a fact on which he takes issue with the prosecution as indicated in the defence response, to give this as a reason.
If it appears to the judge that reasons given in pursuance of subsection (2) above are inadequate, he shall so inform the person giving them, and may require him to give further or better reasons.
Any fact or matter admitted or agreed in a notice served by the accused in compliance with an order under subsection (2) shall be treated as an admission of that fact or matter.
Any document which it is agreed under this section ought to be admitted as evidence without further proof shall be admissible in evidence on its production by the prosecutor without further proof.
Where in the course of a preparatory hearing it appears to the judge, after hearing any representations that the accused and the prosecutor may wish to make, that—
the attendance of any witness at the trial after the jury has been empanelled cannot be procured without such expense or inconvenience as in the circumstances of the case would be unreasonable; and
having regard to the nature of the evidence sought to be admitted, it is unnecessary to lead such evidence before the jury,
the judge may allow the witness to give his evidence at the preparatory hearing.
Where evidence is given under this section the prosecutor or the accused, as the case may be, shall be given full opportunity of cross-examining the witness.
Evidence given under this section shall be recorded, transcribed, read over to and signed by the witness and also by the judge.
Evidence given under this section shall be admissible in evidence at the trial after the jury has been empanelled even though the deponent is not called as a witness at that time.
Any written statement admitted in evidence under this section shall, unless the judge otherwise directs, be read aloud at the trial after the jury has been empanelled and, where the judge so directs, an account shall be given orally of so much of any statement as is not read aloud.
Any document or thing referred to as an exhibit and identified in a written statement admitted in evidence under this section shall be treated as an exhibit produced and identified in court by the maker of the statement.
Except as provided in subsections (2) and (5A), no person shall publish in Hong Kong a written report, or broadcast in Hong Kong a report, of a preparatory hearing containing any matters other than matters permitted by subsection (5). (Amended 68 of 1995 s. 7)
On the application at a preparatory hearing of the accused (or, if more than one, any one of the accused) the judge shall order that subsection (1) shall not apply to reports of that preparatory hearing.
If the accused is not represented at a preparatory hearing by counsel, the judge shall explain to him the restrictions imposed by subsection (1) and inform him of his right to apply to the court for an order that subsection (1) shall not apply to reports of that preparatory hearing.
Where a judge has made an order under subsection (2) in respect of reports of a preparatory hearing and has adjourned that preparatory hearing, he shall, at the beginning of the resumed preparatory hearing, announce that such order has been made.
The matters referred to in subsection (1) as matters permitted by this subsection are—
the name of the judge;
the names, occupations and ages of the accused and witnesses;
the offence, or a summary thereof, with which the accused is charged;
the names of counsel and solicitors engaged in the proceedings;
where the hearing is adjourned, the date to which it is adjourned;
any arrangements as to bail on adjournment;
whether legal aid was granted to the accused.
It shall not be unlawful under this section to publish in Hong Kong a written report, or broadcast in Hong Kong a report of a preparatory hearing at or after the conclusion of the trial of the accused or, if there is more than one accused, of the last of the accused to be tried. (Added 68 of 1995 s. 7)
If a report is published or broadcast in contravention of this section, the following persons—
in the case of publication of a written report as part of a newspaper, any proprietor, editor, printer, publisher or distributor thereof;
in the case of publication of a written report otherwise than as part of a newspaper, the person who publishes or distributes it;
in the case of a broadcast of a report, any person who transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper,
shall be guilty of an offence and shall be liable on conviction to a fine at level 3 and to imprisonment for 6 months. (Amended E.R. 5 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—
broadcast (廣播) means sounds or visual images broadcast by wireless telegraphy or by means of a high frequency distribution system over wires, or other paths provided by a material substance and intended for general reception; editor (編輯) means the chief editor if there are more editors than one, and includes any person acting as chief editor or performing any of the usual functions of a chief editor; newspaper (報章) means any paper or other publication and any supplement thereto available to the general public which—(a)contains news, intelligence, occurrences or any remarks, observations or comments in relation to such news, intelligence, or occurrences or to any other matter of public interest; and(b)is printed or produced for sale or free distribution and published either periodically (whether half-yearly, quarterly, monthly, fortnightly, weekly, daily or otherwise) or in parts or numbers at intervals not exceeding 6 months; proprietor (東主) includes lessee; publish (發布), in relation to a report, means publish the report, either by itself or as part of a newspaper, for distribution to the public.At the conclusion of a preparatory hearing, unless the accused is discharged under section 22, the judge shall order that the jury be empanelled and the trial shall proceed before the judge and jury.
Where proceedings are transferred to the court under section 4 but no preparatory hearing is ordered under section 9, the prosecutor shall serve on the accused and deliver to the court the documents listed in paragraphs (a), (b) and (c) of section 13(1) within 30 days of the decision of the judge that no such preparatory hearing shall be held.
The accused may at any time before the jury is empanelled apply to the judge for his discharge on the ground that the evidence disclosed 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.
Only one application may be made by an accused under this section in relation to a single indictment.
Evidence shall not be given on the hearing of an application under this section except with the leave of the judge.
The judge shall not grant such leave unless it appears to him, having regard to any matters stated in the application for leave, that the evidence proposed to be given bears on the issue of whether or not there is a prima facie case.
Where evidence is given in pursuance of leave granted under subsection (3) the prosecutor or the accused, as the case may be, shall be given full opportunity of cross-examining the witness and the accused may cross-examine any such witness whether or not he has been examined by the prosecutor.
In deciding whether to grant an application for discharge under this section the judge shall have regard to—
the documents ordered to be served and delivered under section 13 or, as the case may be, the documents served and delivered under section 21, any depositions served under section 80B(1) of the Magistrates Ordinance (Cap. 227) (and, where the prosecutor has notified the accused that he will seek to have further evidence admitted at the trial, such further evidence);
any evidence given in pursuance of leave granted under subsection (3); and
any representations which the accused and the prosecutor may wish to make.
The judge may, after consideration of the documents, the evidence (if any) given in pursuance of leave granted under subsection (3) and any representations which the accused and the prosecutor may wish to make, direct that the accused be discharged.
Subject to section 81E(3) of the Criminal Procedure Ordinance (Cap. 221), where a person is discharged under this section he shall be treated as having been tried on indictment and acquitted.
The hearing of an application under this section shall, subject to rules or orders made under this Ordinance, be heard in open court.
In the absence of rules or orders made under this Ordinance with respect to applications under this section, the Criminal Procedure (Applications under Section 16) Rules (Cap. 221 sub. leg. G) shall apply thereto with the substitution for references therein to applications under section 16 of references to applications under this section. (Amended E.R. 5 of 2021)
Section 19(6) and (7) shall apply to a contravention of the Criminal Procedure (Applications under Section 16) Rules (Cap. 221 sub. leg. G) applied under subsection (10) as they apply to a contravention of section 19. (Amended E.R. 5 of 2021)
This section shall apply to all proceedings transferred to the court under section 4, whether or not a preparatory hearing is ordered to be held.
Where in proceedings transferred to the court under section 4 the judge is of the opinion that neither the prosecutor nor the accused will be substantially prejudiced thereby, the judge may, on application, extend the time prescribed for the doing of any act under this Ordinance.
Where the prosecutor or the accused fails to comply with the time prescribed for the doing of any act under this Ordinance, the judge may make an order requiring compliance within a stated time.
In proceedings transferred to the court under section 4, the judge may, for the purpose of assisting the jury in their comprehension of the issues, order that copies of any of the following shall be furnished to the jury—
the prosecution case statement and, with the consent of the accused, the defence response;
any statement of a witness admitted pursuant to or under section 65B or 65C of the Criminal Procedure Ordinance (Cap. 221) or section 18 of this Ordinance;
any statement of facts admitted pursuant to section 17;
any document admitted as evidence without further proof pursuant to section 17;
the opening and closing speeches of counsel;
any schedules, charts or diagrams;
transcripts of evidence;
the judge’s summing up; and
any other document which the judge thinks fit.
A copy of any statement, speech, schedule, chart, diagram, transcript, summing up or other document ordered to be furnished to the jury under subsection (1) may be furnished in any form that the judge considers appropriate.
Where in proceedings transferred to the court under section 4 the judge is satisfied that one party to the proceedings has incurred costs as a result of an unnecessary or improper act or omission by or on behalf of another party (including a co-accused) during the proceedings, the judge may make an order as to the payment of those costs.
An order under subsection (1) may—
be made at any time during the proceedings;
be made subject to conditions as to the time for payment of costs referred to in subsection (1); and
award costs on an indemnity basis.
Subject to this Ordinance, the Criminal Procedure Ordinance (Cap. 221) shall apply to proceedings transferred to the court under section 4 with such modifications as may be necessary for that purpose.
Nothing in this Ordinance shall be construed as limiting the powers of the court under the Criminal Procedure Ordinance (Cap. 221).
The Criminal Procedure Rules Committee constituted under section 9 of the Criminal Procedure Ordinance (Cap. 221) may, with the approval of the Legislative Council, make rules and orders regulating the practice and procedure under this Ordinance.
(Amended 13 of 1995 s. 29)