8. Charging Practice and Procedure

Settling Charges

8.1   When choosing charges to be prosecuted, the prosecution should attempt to reflect adequately the criminality of the conduct alleged, in a manner that is both efficient and that will enable the court to do justice between the community and the accused. The number of charges should be kept as low as reasonably possible. Where a large number of offences of a similar nature is alleged, the use of representative charges should be considered. If the accused agrees, outstanding additional charges may be taken into account on sentencing.

Venue for Trial

8.2   Some offences must be tried in the Magistrates’ Court, some must be tried on indictment in the District Court or the Court of First Instance and some may be tried either way. Purely summary offences may be tried with indictable offences, but not in the Court of First Instance.

8.3   Article 86 of the Basic Law provides: “The principle of trial by jury previously practised in Hong Kong shall be maintained.”

8.4   When deciding the venue for trial, a prosecutor should have regard to:

  1. the maximum penalties available for offences dealt with in the Magistrates’ Court (2 years’ imprisonment in most cases), the District Court (7 years’ imprisonment) and the Court of First Instance (the prescribed maximum penalty);
  2. the general circumstances of the case;
  3. the gravity of the allegations;
  4. issues likely to be in dispute;
  5. the public importance of the proceedings;
  6. whether or not the accused held a position of high public status, responsibility or trust;
  7. whether or not issues arise for determination that require the application of community standards and/or values;
  8. any aggravating and mitigating factors;
  9. the accused’s antecedents.

After considering the above, the prosecutor should select an available venue for trial that will enable the relevant court to deal most appropriately with the matter and impose an adequate sentence to address the criminality involved in the conduct. A prosecutor should take into account the possibility of an enhanced sentence for an organized crime offence.