Council meeting-III. Gov. Bills-2 Read-Criminal Procedure (Amend.) Bill 2023

The Bills Committee on Criminal Procedure (Amendment) Bill 2023


Deputy President, the main objective of the Criminal Procedure (Amendment) Bill 2023 (“the Bill”) is to address the current legal lacunae in order to prevent any defendant from going unpunished in the Court of First Instance (“CFI”) of the High Court because the prosecution is unable to appeal where a judge has erroneously ruled that the defendant has no case to answer, resulting in a verdict of acquittal by the jury, and where a designated judge has erroneously given a verdict of acquittal in national security cases (“NS cases”).

In fact, most criminal cases tried before CFI involve serious offences and are usually heard by a judge and a jury.  The judge makes decisions on questions of law and instructs the jury on legal principles in deciding the facts of the case and determining whether the defendant is guilty or not.  If the judge rules that the defendant has no case to answer and directs the jury to acquit the defendant, the prosecution cannot appeal against such a ruling under the current system.  Even if the judge’s ruling is subsequently found to be erroneous, the prosecution cannot lodge an appeal, which could lead to a miscarriage of justice.

In addition, according to Article 46 of the Hong Kong National Security Law, “the Secretary for Justice may issue a certificate directing that the case shall be tried without a jury on the grounds of, among others, the protection of State secrets, involvement of foreign factors in the case, and the protection of personal safety of jurors and their family members.  Where the Secretary for Justice has issued the certificate, the case shall be tried in the Court of First Instance without a jury by a panel of three judges.”  Under the current system, if a judge or magistrate commits an error of law in returning a verdict of acquittal in a criminal case tried before the District Court or the Magistrates’ Courts, the prosecution has the right to appeal by way of case stated.  However, in NS cases tried before CFI, which are more serious in nature, carry longer sentences and have a wider impact on society, the prosecution is not allowed to appeal.  This is an anomaly that must be corrected.

This legislative amendment exercise seeks to fill the two legal lacunae mentioned above.  In criminal trials with a jury, the Bill gives the prosecution the right to appeal against no-case rulings by judges, subject to the leave of CFI or the Court of Appeal (“CA”).  Only if CA is satisfied that a no-case ruling involved an error of law or principle would it reverse or vary it.  As for NS cases tried by the Panel, the Bill also allows the prosecution to appeal by way of case stated on matters of law, such as where a judge has misinterpreted the law or reached a perverse conclusion.

Deputy President, some members of the public are concerned about whether the proposed amendments in the Bill will affect the principle against double jeopardy.  As Honourable colleagues have just mentioned, an appeal is not a retrial but a review by CA on the limited grounds of error of law or excess of jurisdiction.  Whether an appeal lodged by the prosecution is successful is determined by CA taking into consideration the relevant legal principles and evidence adduced.  Only if CA is satisfied that there is an error of law or principle in a no-case ruling will it quash the verdict of acquittal and order a retrial.  If CA refuses to grant leave to appeal, or if the prosecution abandons the appeal, the defendant’s original acquittal will stand.  Therefore, members of the public can rest assured that the legislative amendments have not violated the principle against double jeopardy, nor have they impaired the independent judicial power of the SAR court.

Deputy President, according to the 2022 World Justice Project Rule of Law Index, Hong Kong continues to rank highly overall―sixth in the East Asia and Pacific region and 22nd out of 140 countries and regions worldwide.  By improving the criminal appeal system, the current legislative amendment exercise will further solidify Hong Kong’s already robust rule-of-law foundation.  It will also enhance international investors’ confidence in our legal system and make them feel more comfortable about investing and doing business in Hong Kong.  I therefore support the passage of the Criminal Procedure (Amendment) Bill 2023.

I so submit.