The redoubtable barrister Chow Hang-tung had a win in court recently. She succeeded in persuading a Court of First Instance (CFI) Judge that a magistrate had been wrong in forbidding newspaper reporting of committal proceedings, the object of which was to secure her appearance for trial in the CFI on offences under the national security law.
The case highlighted a little-known part of the criminal justice system. Committal proceedings are a feature of trial on indictment or, as it is commonly known, trial by jury.
Simply put, if the prosecution charges you with an offence that a jury can try and the Secretary of Justice wants a jury trial, or if the case is so serious, like murder, that there must be a jury trial, your case will go first for committal before a magistrate.
The magistrate will inquire into the strength of the case and see if it should go forward for trial in the CFI.
Committal proceedings can be a full dress rehearsal of the anticipated trial, lasting a few days and involving many witnesses. Or, and this is true for most cases, they can be over in 10 minutes, with the magistrate sending the accused to the CFI for trial or sentence, as the case may be, after complying with some necessary formalities.
The foundation of committal proceedings is laid in Article 86 of the Basic Law, which says that “[T]he principle of trial by jury previously practised in Hong Kong shall be maintained”.
The guarantee in the Basic Law has been knocked about a bit by the national security law. Suppose you have the misfortune to be charged with an offence endangering national security, which may or may not be one of the offences created by the security legislation itself.
Article 45 of the security law says the secretary of justice has the right to certify that exceptional circumstances exist, enabling him or her to direct that the CFI not ask a jury to stand by to hear the case; instead, three judges take the jury’s place.
However, the “principle” of trial by jury in Article 86 imports all the rights that come with that venerable institution. Article 87 of the Basic Law reinforces the guarantee.
This article says that the rights previously applied and enjoyed by parties to criminal or civil proceedings “ shall be maintained.” Where the prosecution decides to, or must, seek a trial on indictment, the right to committal proceedings before a magistrate is firmly linked to that decision.
The reason for these preliminary proceedings before a magistrate is rooted in English common law. A few hundred years ago, many criminal offences were classified as felonies. If tried and convicted of a felony, there was only one sentence: death with forfeiture of all property.
Penalties for lesser crimes, called misdemeanours, were ferocious too and could include imprisonment, fines and maiming. Prosecutors once presented felony and misdemeanour charges directly to the sovereign’s justices, and they then got on with the job of trying the accused with a jury.
In the eighteenth century, justices of the peace were given more responsibilities to deal with law and order at a local level. Not all criminal cases were tried in London. Judges had to ride out on circuit to visit towns and cities to do justice there by holding jury trials.
One responsibility for a town’s justices of the peace was considering the question of bail and recognisances for an accused person, who might have to wait many months before the sovereign’s justices came their way to try cases on indictment.
After 1823 sentences of imprisonment could be imposed for many felonies instead of the death sentence. When considering bail in felony and misdemeanour cases, justices of the peace looked at the strength of the prosecutor’s case and the witnesses they intended to call. In the absence of a professional police force and salaried prosecutors, malicious prosecutions were common.
The justices of the peace, knowing the local community well, identified weak or dubious cases and would-be witnesses who were dishonest but supported the prosecution. They did their best to stop these suspect cases from progressing to trial.
The Indictable Offences Act 1848 regularised this informal quality control of prosecutions. The justices of the peace or, if there was one, a professional magistrate were to inquire into the prosecution’s case and hear witnesses.
If, at the end of the inquiry, the magistrate thought that the evidence was just not good enough to justify sending the accused for trial by jury, he – all magistrates were men in those far-off days – could refuse to commit. If, on the other hand, there was sufficient evidence to justify trial, the magistrate had to commit the accused to stand trial on indictment.
Refusing to commit a case for trial on indictment was not an acquittal. Technically, the prosecution could try again with better evidence but judges did not like second bites of the cherry and could halt a second prosecution on the grounds of oppression.
The English legislation was reproduced in the Hong Kong Magistrates Ordinance in the mid-19th century. Although there have been changes to that part of the ordinance dealing with committals – Part III – the grammatically complex skeleton of the Indictable Offences Act 1848 is still there in all its wordy but decaying Victorian grandeur.
This part’s provisions require the prosecution to identify the charges it seeks to have tried in the CFI and prepare the statements of the witnesses in support of the prosecution. The evidence needs to be served on the accused in time to let them decide whether they wish to have the witnesses called to give evidence so the magistrate can inquire into its sufficiency.
Defendants do not usually exercise the right to require witnesses to attend a committal. If the prosecution has done its job correctly, the statements of the witnesses will disclose a case that is strong enough to make committal inevitable. A defendant can even choose to plead guilty at this stage and require the court to commit them to the CFI for sentencing.
However, there are some cases where the defence believes that there is weakness in the case, and they can deliver a knockout blow in the committal proceedings and avoid the wait for trial in the CFI, which could be months or – especially with national security cases today – even years away.
An example of a case that could be disposed of at this early stage is one where the prosecution relies solely on identification evidence. Effective cross-examination of the key identifying witness might disclose deficiencies which mean the magistrate could not say that the evidence was “sufficient.” Without other evidence in support, the magistrate could not commit the defendant for trial in the CFI.
A defendant may opt for a full-blown committal for other reasons. The prosecution case may be complex and involve a large number of witnesses. The chances of persuading a magistrate that there is not enough evidence to avoid committal may not be great. Still, cross-examination of the prosecution witnesses has its uses. It may disclose inherent problems with the prosecution case, which the defence can exploit when the case finally gets to the CFI.
A defendant might want witnesses called at the committal stage because they believe publicity will help their case. Most crime is local, occurring within a community such as a village, town or city. Committal proceedings were a way of advertising that the accused faced serious charges.
News reports of the proceedings could result in witnesses later coming forward to help an accused, for example, by confirming an alibi or giving an account of an event that contradicted the prosecution’s witnesses.
Another reason for insisting on a full inquiry into the prosecution’s case at the committal stage could be to draw attention to the defendant’s situation. If the defendant faced what they considered to be an unjust prosecution, it did no harm to their case to require the prosecution to disclose an unpopular case at an early stage.
Whatever the defendant’s motive for insisting on a preliminary inquiry, the proceedings played out in public, and newspaper reporters were, under the common law, entitled to be present and report on their progress.
Although the idea of open justice is what judges and magistrates should strive for, it sometimes might be too much of a good thing. Some defendants did not want details of the prosecution’s case made public before the committing magistrate because they considered it damaging and likely to prejudice potential jurors.
A good example would be a man charged with a number of sex offences with young children. Another case where the accused would not want full and accurate reporting would be where their previous convictions for serious offences would be disclosed in the context of making an application for bail.
Most reporters used common sense and discretion when reporting on cases where there might be prejudice to a defendant if they reported the committal proceedings in full. However, there were cases where newspapers reported a committal case “warts and all” and defendants complained of prejudice at the trial proper.
Parliament worked out a solution to this problem. In 1967 it enacted legislation which restricted reporting of committal proceedings. Reporters would be limited to telling the public the bare bones of a committal case; the name of the defendant, the charges, the names of legal representatives, the dates of hearings.
However, parliament recognised that some defendants might still want the public to know more details of their cases. It said the reporting restrictions must be removed if a defendant wished. The accused did not have to justify their application. In other words, the common law position of open justice would be restored at the option of the accused.
The Legislative Council introduced the English provision restricting reporting into Part III of the Magistrates Ordinance in 1983. It was on this that Chow Hang-tung relied in February to lift the veil on the committal proceedings that would automatically apply unless a defendant applied to have it removed.
The magistrate dealing with Chow’s committal mistakenly thought he had a discretion to keep reporting restrictions in place, even though the words of the statute were clear. They said: “a magistrate shall, on an application for the purpose made with reference to any committal proceedings by the accused or one of the accused, as the case may be, order that [reporting restrictions] shall not apply.”
The upshot of Chow’s successful judicial review will be that when the committal proceedings resume in a short while the press will be able to do its job properly. Assuming that a full preliminary inquiry goes ahead, the press will, for our benefit, report on matters of genuine public interest.
These may include the reasons why the prosecution brought the national security charges and what witnesses and what evidence will be deployed to support them. The prosecution may have also to account publicly for the delays which seem to bedevil such cases and which, with bail refused for most defendants, means ever lengthening pre-trial detention.
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