ABSTRACT
Defendants or accused persons who are prosecuted for commission of an offence are tried before the courts. The courts determine the guilt or innocence of defendants in the eyes of the law. If the defendant is found to be guilty, the courts also decide on the sentence to be imposed on the convicted person. This chapter outlines the system and structure of the criminal courts in Hong Kong. Judicial power of the courts in Hong Kong is derived from section 4 of
Chapter IV of the Basic Law of the Hong Kong Special Administrative Region (hereafter the Basic Law). The Basic Law came into effect on the resumption of sovereignty by China on 1 July 1997, but the provisions of the Basic Law seek to provide continuity in the court system that existed in Hong Kong under British rule. Article 81 provides that the judicial system previously practised in Hong Kong shall be maintained except for those changes consequent upon the establishment of the Court of Final Appeal. Article 86 provides that the principle of trial by jury previously practised in Hong Kong shall be maintained. Also, the principles previously applied in criminal (or civil) proceedings in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained (article 87). Despite the change in sovereignty, the common law and other laws previously in force in Hong Kong continue to apply in Hong Kong in accordance with articles 8 and 18. Article 81 specifies the courts in Hong Kong: the Court of Final Appeal, the
High Court (composed of the Court of Appeal and the Court of First Instance), District Courts, Magistrates’ Courts and other special courts. The structure, powers and functions of the courts are prescribed by law (article 83). Accordingly, each of the courts in Hong Kong is established pursuant to specific ordinances, with their powers and functions specified in their respective ordinances and the court rules made under the relevant ordinance. The High Court and the Court of Final Appeal are established as ‘superior courts’ (see High Court Ordinance (Cap. 4) sections 3, 12, 13; Hong Kong Court of Final Appeal Ordinance (Cap. 484) section 3), which means they also have what are referred
to as inherent powers, which are derived from common law. Also relevant is the Criminal Procedure Ordinance (Cap. 221) which sets out certain rules on procedure and other matters in the criminal courts.
