Amendments to Hong Kong’s criminal procedure, which are necessary, proper and timely, will help safeguard procedural justice and the reputation of the laws of Hong Kong.

Plugging loopholes in criminal procedure to prevent miscarriage of justice

The Legislative Council passed the Criminal Procedure (Amendment) Bill 2023 (the “Bill”) on third reading in July 2023. Prior to this, in a criminal trial with a jury in the Court of First Instance (the “CFI”), before the jury has had the chance to consider the facts of the case, the judge may rule that the defendant has no case to answer on the ground that the evidence does not show a reasonable prospect of conviction. This is considered a final ruling and the defendant is acquitted. The prosecution cannot lodge an appeal even if there is an error of law during the trial, resulting in an irreversible miscarriage of justice in terms of legal principles. In actual practice, miscarriages of justice caused by this loophole have already occurred. Hong Kong must plug this loophole as soon as possible to prevent miscarriages of justice.

On the other hand, before the amendments, the law does not allow the prosecution to appeal to the Court of Appeal (the “CA”) against an acquittal decision made by a three-judge panel of the CFI in criminal cases concerning offences endangering national security without a jury under Article 46 of the Hong Kong National Security Law. In contrast, in criminal cases tried in the District Court and the Magistrates’ Courts, including those under the Hong Kong National Security Law, if the judge or the magistrate has committed an error of law in making an acquittal decision, the prosecution has the right to appeal against it by way of case stated. The appeal mechanism for acquittals in the District Court and the Magistrates’ Courts has worked effectively. There is no reason whatsoever to make an exception for cases involving “endangering national security” tried by the CFI of the High Court. Acquitting a person who has endangered national security due to an error of law on the part of the trial court will lead to serious consequences. It will not only fail to help clarify legal principles and the facts of the case, but also have a negative impact on national security. This must be rectified early.

Restrictions on appeal mechanism are reasonable and in line with trend of common law reform

I have full confidence in the professionalism of the judges in Hong Kong, but no one is perfect and no one is without faults. This is precisely the original intention of establishing an appeal mechanism for seeing justice done. The Bill addresses an existing lacuna in the law by allowing the prosecution to appeal against a no-case-to-answer ruling made by a judge of the CFI of the High Court and against an acquittal decision made by a trial court in cases concerning offences endangering national security. Thus, institutionally, both the prosecution and the defence will have an avenue to appeal, but the prosecution may only lodge an appeal under specified circumstances and in accordance with specified procedures. This will enhance procedural justice in criminal trials. At the same time, the Bill imposes reasonable restrictions on the two proposed appeal mechanisms. In the case of the first scenario, the Bill provides that the prosecution must give an acquittal guarantee that the defendant will be acquitted if leave to appeal is not granted or the appeal is abandoned by the Secretary for Justice before the CA’s ruling is given. And the CA may reverse or vary a no-case-to-answer ruling only if it is satisfied that the no-case-to-answer ruling involves an error of law or principle. As for the second scenario, the prosecution must appeal by way of case stated against a verdict or order of acquittal involving an error of law within 14 clear days after notifying the court of its intention to appeal or within such further period as the CA may extend.

It is a trend in judicial reform in common law jurisdictions to make these two amendments. In fact, the majority of stakeholders in Hong Kong, including legal professional bodies and law schools, are in favour of the legislative proposals. The two amendments are procedural in nature and non-retrospective. They do not contravene the principle against double jeopardy, nor do they affect the right of the HKSAR courts to exercise judicial power independently under Article 85 of the Basic Law.

Defendants’ rights are fully protected under Hong Kong National Security Law

Lastly, I would like to point out that some people think there will be a 100% conviction rate in all cases under the Hong Kong National Security Law after this amendment is adopted. This is nonsense. The Bill is intended to improve the procedural mechanism rather than targeting particular defendants. The CA will only grant leave to appeal if there is an error of law in the verdict or order of acquittal made by the trial court. If the CA is satisfied that there is no sufficient ground for doing so, it must dismiss the appeal. The rights of the defendant are fully protected and the defence can always appeal against the conviction or sentence.

This is a free translation. For the exact meaning of the article, please refer to the Chinese version.