The Court of First Instance tries the most serious criminal offences, such as murder, manslaughter, rape, armed robbery, or trafficking in large quantities of dangerous drugs and complex commercial frauds. Most of such cases are transferred from the Magistrates' Courts after the committal proceedings.
Cases are tried, normally in open court, by a Judge of the Court of First Instance, sitting with a jury of seven, or, when a Judge so orders, nine. The prosecution is conducted by the Department of Justice of the Hong Kong Special Administrative Region.
The Clerk of Court's Office will list the case for date fixing before the Listing Judge and will inform the parties in writing of the date of appearing. At the date for fixing a hearing, the Listing Judge will give the dates of both the pre-trial review and the trial.
An accused who is acting in person should seek legal advice immediately and may seek legal assistance from the Legal Aid Department. If he or she chooses not to engage a lawyer, the case for the defence should be very carefully prepared well before trial. If it is intended to summon witnesses, an Information and Request for a Summons to a Witness together with a Summons to a Witness should be completed and filed with the Clerk of Court. The Court will arrange for the bailiff to serve the Summons.
A Pre-trial review will be held usually 6 weeks before trial. The trial Judge will at such meeting give necessary directions to secure proper and efficient trial of the case.
Cases can be conducted in either Chinese or English.
If a party chooses Chinese, he or she should make this
request to the Listing Judge at the date fixing session.
If approval is granted, a bilingual Judge will be arranged
to conduct the trial. The Listing Judge may allow or
refuse the request.
If the accused is not satisfied with the decision of the Court, he can appeal to the Court of Appeal. Please see page 28 and 29.
The Court of First Instance has unlimited jurisdiction over all civil matters. Common types of civil proceedings in the Court of First Instance include:
- breach of contract
- company winding-up
- construction and arbitration
- custody and ancillary relief in matrimonial proceedings
- intellectual property
- judicial review
- personal injury
- probate and administration
Note that if a claim is for an amount slightly in excess of $1 million, the excess can be abandoned to bring the claim within the jurisdiction of the District Court, since costs there are generally lower than those of the Court of First Instance.
In civil proceedings, one party - the plaintiff - starts a civil action against another party - the defendant - in one of three ways. As plaintiff, you may:
- engage a lawyer
- seek the help of the Legal Aid Department
- start the action yourself
Certain types of individual, for example, infants, mentally disabled persons and the estate of a deceased person, can only commence an action by a representative. A limited company must engage a solicitor to act on its behalf in the Court of First Instance whether as plaintiff or defendant unless special permission is obtained from the Court for it to be represented by a director.
As plaintiff, you can commence a civil action in the Court of First Instance in one of the following modes:
- Writ of summons
- Originating summons
Forms for all these modes can be found in Appendix A
of the Rules of the High Court, Chapter 4 of the Laws
of Hong Kong.
Since the most common mode for commencing an action is the Writ of Summons, it is outlined below.
You can obtain a Writ of Summons (Form No. 1) and the accompanying acknowledgement of service (Form No. 14) from the High Court Registry. A Writ of Summons must always be used to commence an action based on contract, tort, fraud, damages for personal injuries or death, damages to property arising out of a breach of duty, and generally for all actions likely to involve a substantial dispute of facts.
If the only claim that you are making is for payment
of money, a Form 16 (for a liquidated claim, e.g. a
debt) or Form 16C (for an unliquidated claim, e.g. damages
for breach of contract or personal injuries) for admission
of your claim should accompany your writ.
As plaintiff, you will set out on Form No. 1 in Chinese or English a statement of claim, i.e. a concise statement of your claim together with the facts you rely on and the relief and remedy you claim. You have to verify the statement of claim with a statement of truth in accordance with Order 41A of the Rules of the High Court.
Pay a filing fee at the Accounts Office of the High Court upon filing the Writ. After you have paid this fee, return the completed forms to the Registry. One copy of the form will be returned to you for reference.
You must serve the writ, acknowledgement of service and Form 16 or 16C (if applicable) on the defendant. This can be done by personal service, registered mail, or insertion through the letter box (or, in the case of a corporation, on the registered address). Make sure the defendant's address is accurate. In an action for recovery of possession of land / property, you must also post up a copy of the writ at the entrance of the premises in question (You may see the "Bailiff's Office" booklet for details).
When the defendant is served with the writ (Form No. 1) and the acknowledgement of service (Form No. 14), he or she must fill in Form No. 14 to indicate if he or she wishes to defend the action and file it with the Registry within 14 days after service of the Writ (including the day of service).
For the purpose of calculating the period of 14 days for filing acknowledgement of service by an individual defendant, a Writ served on the defendant personally is treated as having been served on the day it was delivered to him and a Writ served by post or by insertion through the defendant's letter box is treated as having been served on the seventh day after the date of posting or insertion.
Any defence must be filed with the court and served on you within 28 days after the time limit for acknowledgement of service expires. The defence must explain why the defendant is disputing your claim and may include a counterclaim against you.
The defence must be verified by a statement of truth in accordance with Order 41A of the Rules of the High Court.
If a defendant does not file Form No. 14 or a defence within the time allowed, you can apply to the Court for judgment. In such a case, a full trial is not required. You may enter judgment for the amount claimed and costs, if the claim is for debt or for liquidated damages, i.e. where the amount of the claim is fixed and ascertainable, for example, action on a cheque.
Interlocutory judgment on liability may be entered instead if you are claiming for unliquidated damages, for example, for loss of profits or damages for injury to person or property. In this case you will have to ask a master or a judge to assess the amount of damages you are entitled to.
Under Order 13A of the Rules of High Court, if you are only claiming for the
payment of money, the defendant may make an admission
and/or propose terms of payment by filing in Court a
Form 16 or Form 16C as may be appropriate and serve
a copy of the same on you. You may file a request for
judgment or reply see Forms 16A, 16D and 16E) to indicate
if you accept the offer and the terms of payment as
proposed by the defendant. If you accept the offer but
do not agree to the terms of payment, you may request
a master to determine the terms of payment.
However, if you do not file a request for judgment or reply within 14 days after a copy of the admission form served on you, the claim is stayed until you file the request or reply.
As plaintiff, you may file with the court and serve on the defendant a reply to any defence filed by him within 28 days after service on you of the defence, and set out additional facts in answer to it.
If the defendant files a counterclaim, you will have to file and serve a defence to it within 28 days after the service on you of the counterclaim if you wish to dispute it. The defendant can enter judgment in default of defence to the counterclaim if you fail to do so within time. As far as the counterclaim is concerned, you have become a defendant.
There are no prescribed forms for a reply or defence to a counterclaim, but you should combine the reply and any defence to the counterclaim in one single document. The document has to be verified by a statement of truth in accordance with Order 41A of the Rules of the High Court.
The pleadings stage will then be complete. Next comes "discovery", when each side must disclose to the other the documents he possesses that relate to the case. After disclosing the documents in the form of a list (Forms No. 26 and 27), both sides must allow the other side to inspect the actual documents.
The parties should consider using other ways such as private negotiation or mediation to settle their disputes, using litigation as the last resort. Mediation is a process through which a mediator will assist the parties to reach settlement for their disputes. Experience has shown that this is a cheaper, effective and faster process for resolution of disputes. The Judiciary has issued a Practice Direction No.31 for the parties to have mediation to resolve their disputes.
The parties shall file and serve a Mediation Certificate indicating whether they intend to have mediation to resolve their disputes at the time when they file the Timetabling Questionnaire as described below. The party who does not intend to mediate will have to state the reasons for such a decision so that the trial judge may consider whether it is reasonable for such a decision.
After trial, if the trial Judge, after considering the reasons, decides that it is unreasonable for the party to refuse mediation, he may impose adverse costs order against the party.
If the parties agree to mediate, they should follow the steps set out in the Practice Direction.
The parties who are represented should seek advice from their legal representatives. Those acting in person may obtain advice from the Mediation Information Office of the Judiciary at LG104 of the High Court Building. For general enquiry, please see “How to contact us below”.
Each party shall file and serve a timetabling questionnaire
within 28 days after the pleadings stage is complete.
You should try to agree with the other party (parties)
on what directions to seek to prepare a case for trial.
As plaintiff, you must, within 14 days after receiving the timetabling questionnaire from the other party (parties) or within 14 days upon expiry of the period for filing and serving a timetabling questionnaire, issue a case management summons for the court to give directions relating to the management of the case.
The court will fix a timetable for the steps to be taken and may fix a milestone date for a case management conference, pre-trial review and/or the trial. You should comply with the directions as you may not be able to get extensions of time without sufficient grounds. In addition, you should attend court on the milestone dates, otherwise your claim will be struck out.
After the Court has given directions for setting down, you should file with the Court an application to set a case down for trial and a notification of setting down. In so doing, you have to pay a prescribed fee. Besides, a bundle of documents has to be lodged.
For cases in the Fixture List both parties should attend before the Listing Officer on the date scheduled for date fixing. The Listing Officer will then list the case for trial in accordance with the directions given by the Listing Master. After date fixing, the pre-trial procedure is then complete and parties should bear the trial date in mind and wait for trial.
For cases set down in the Running List, they will be placed initially on the Pending List and then Warned List. Once a case has been set down the title of the action and its action number will appear at the bottom of the Pending List if it is expected to be tried during the next succeeding month. The cases will be tried by judges who are found available to try them one after another generally in accordance with the order set out in the Pending List. Parties have to check the Pending List on the last day of each month to see if their case has been listed on it. Once the case is listed on the Pending List, they have to check the Warned List every Wednesday. This is because every Wednesday a number of cases from the Pending List will be warned that they will likely to be called and tried in the next week and they are put in a separate list called the Warned List. Once a case is listed on the Warned List, parties are required to check the Warned List every day whether their case is fixed to be tried the next day.
The Pending List is posted on the Notice Board in the reception area of the Clerk of Court's Office on the Ground Floor. The Warned List is posted on the Notice Board outside the Clerk of Court's Office. The Warned List is also accessible at the Judiciary Website. At 2:30 p.m. in every afternoon the Listing Clerk will mark on the Warned List those cases that will be tried the next day specifying the venue and date of trial. It is the responsibility of the parties to ensure that they will attend the trial on time.
If either party intends to call witnesses, their attendance at the trial must be secured well in advance. It may be necessary to issue a writ of subpoena, i.e. a witness summons. (See Form No. 28 or 29 in Appendix A of the Rules of the High Court, Chapter 4 of the Laws of Hong Kong.) The appropriate office for issuing such a writ is the Registry of the High Court. Every writ of subpoena should be accompanied by a deposit to cover the witness's reasonable expenses.
Both parties should attend court punctually on the trial date, bringing relevant original documents and photocopies for the Judge and for the other party if necessary. Your witnesses should come with you. The ground floor lobby notice board will show which court is hearing your case.
At the trial, the Court will hear the evidence of witnesses and the submissions of the parties. The Court may adjourn the case to another date if further information and/or evidence are needed. The Court may deliver judgment at the end of the trial or deliver/hand down the judgment at a later date.
If parties are willing to settle, the Court will make the settlement an order of the Court. If you and the other party settle the case amicably before the trial, you may file a notice to discontinue the case, or file a consent order setting out your agreement. You may also apply to the Court at the trial to have the terms of settlement made an order of the Court.