Hong Kong Ordinances

DISTRICT COURT ORDINANCE - SECT 77A

Transfer of proceedings

(Past version on 30/06/1997).

Adaptation amendments retroactively made - see 25 of 1998 s. 2

(1) In any proceedings before the Court where a charge sheet has been
delivered under section 75(3)(a) against an accused person, before an opening
speech is made by or on behalf of the prosecution or, where no such speech is
made, before the first witness is called to give evidence on behalf of the
prosecution, the Secretary for Justice may apply to the Court for an order
that the proceedings be transferred to the Court of First Instance or before a
magistrate to be dealt with summarily. (Amended L.N. 362 of 1997; 25 of 1998
s. 2)

(2) Any application under subsection (1) shall be made to a judge by way of
motion, notice of which shall be supported by an affidavit showing the grounds
on which the application is made.

(3) A copy of the notice of motion and the affidavit shall be served on the
accused person not less than 21 days before the date named in the notice for
hearing the motion, unless the judge gives leave to the contrary.

(4) On an application being made under subsection (1), the judge may, subject
to subsection (5), and if he considers it fit having regard to the interests
of justice, make an order allowing the application (in
this section and section 77B referred to as an "order of transfer") or refuse
the application and in either case may make such order as to costs as he
considers appropriate.

(5) Upon making an order of transfer of proceedings to the Court of First
Instance, the judge shall inform the accused person that he may elect to have
the charge or charges to which the order relates heard at a preliminary
inquiry before a magistrate and that if he does not so elect the proceedings
shall be transferred for trial to the Court of First Instance without an
inquiry; and the accused shall thereupon be asked whether or not he elects to
have the charge or charges against him heard at a preliminary inquiry and he
may make such an election. (Amended 25 of 1998 s. 2)

(6) Where the accused does not elect to have the charge or charges heard at a
preliminary inquiry the proceedings shall stand transferred to the Court of
First Instance for trial. (Amended 25 of 1998 s. 2)

(7) Where the accused person elects under subsection (5) to have a preliminary
inquiry or where an order is made for transfer of proceedings to be dealt with
summarily by a magistrate, the judge shall appoint a date on which the accused
person shall appear before a magistrate.

(8) Where under this section proceedings stand transferred to be dealt with
summarily, the date appointed under subsection (7) shall not be earlier than
21 days from the date of the order of transfer.

(9) Where an application is made under subsection (1), the entire proceedings
before the Court shall be stayed until the application is disposed of unless
the judge otherwise orders in respect of any matter.

(10) At the time of making an order of transfer, the judge may remand the
accused person in custody or on bail as he may consider appropriate.

(11) Unless the judge otherwise orders in respect of any matter, an
order of transfer shall operate to terminate the proceedings before the Court.

(12) An order of transfer shall not be subject to appeal.

(13) Where apart from this subsection the Court does not have jurisdiction to
hear and determine an application made under subsection

(1), this subsection shall confer such jurisdiction. (Added 59 of 1992 s. 12)