THE CRIMINAL APPEAL PROCESS
Advice on conviction and sentence.
If you, a friend or a family member have been convicted of an offence and are dissatisfied with the result, MCS can advise on a possible appeal. An appeal may challenge the conviction, the sentence imposed by the Judge or Magistrate, or both.
Strict time limits apply and the correct route depends on the court in which the person was convicted. MCS can assess the merits of a proposed appeal, explain the applicable time frame, prepare the necessary documents and work with experienced appellate barristers where courtroom advocacy is required.
APPEAL PATH
Appeals from Magistrates' Courts
A person convicted or sentenced in a Magistrates' Court may ask the Court of First Instance to review the decision.
- Destination
- A Judge of the Court of First Instance of the High Court.
- Ordinary time limit
- A notice of appeal should generally be lodged within 14 days after the Magistrate's decision.
- Scope
- The appeal may concern the conviction, the sentence, or both.
- Prosecution route
- The prosecution may use the exceptional case-stated procedure where a decision is alleged to be erroneous on a point of law.
MCS can review the Magistrate's reasons, the evidence and the sentence; advise whether there are properly arguable grounds; and prepare the notice and grounds of appeal. Where advocacy is required, MCS often works closely with experienced barristers instructed to represent the client before the appellate court.
APPEAL PATH
Appeals from the District Court
A person convicted or sentenced in the District Court may apply to the Court of Appeal for leave to challenge the result.
- Destination
- The Court of Appeal of the High Court.
- Leave and timing
- Leave to appeal is required. The application should generally be lodged within 28 days of conviction or sentence.
- Scope
- An appeal may challenge the conviction, the sentence, or both, provided an arguable ground is identified.
- Prosecution route
- The Secretary for Justice may pursue a case stated on a point of law and may seek review of a sentence in exceptional circumstances.
MCS can assess the trial record and judgment, identify appealable errors, advise on prospects and procedural requirements, coordinate specialist counsel where appropriate, and prepare the leave application and substantive appeal.
APPEAL PATH
Appeals from the Court of First Instance
Criminal decisions of the Court of First Instance are generally challenged in the Court of Appeal, subject to the applicable leave requirements.
- Destination
- The Court of Appeal of the High Court.
- Leave and timing
- Leave to appeal is required and the application should generally be filed within 28 days of conviction or sentence.
- Conviction appeals
- Potential grounds may involve legal misdirection, procedural unfairness, the wrongful admission or exclusion of evidence, or an unsafe conviction.
- Sentence appeals
- The court may consider whether a sentence involved an error of principle or was manifestly excessive.
MCS can conduct a detailed review of the summing-up, rulings, admitted evidence and trial transcript; work with appellate counsel on focused grounds; and manage the leave application, written submissions and hearing preparation.
APPEAL PATH
Court of Final Appeal
The Court of Final Appeal is Hong Kong's highest appellate court. A further criminal appeal is possible only where the statutory test for leave is met.
- Jurisdiction
- It hears qualifying appeals from final decisions of the Court of Appeal and certain final decisions of the Court of First Instance.
- Leave required
- No criminal appeal is admitted unless leave has first been granted by the Court of Final Appeal.
- Grounds for leave
- The case must involve a point of law of great and general importance or disclose a substantial and grave injustice.
- Finality
- Its determination is final within Hong Kong's court hierarchy. The Basic Law separately provides a mechanism for interpretation under Article 158.
MCS can advise whether the statutory threshold for a final appeal may be met, help formulate the question of law or substantial-and-grave-injustice ground, assemble the necessary record, and coordinate the leave and appeal process with experienced appellate counsel.
MCS APPEAL EXPERIENCE
Selected appeal cases handled by MCS
Some examples of appeals handled by MCS:
FURTHER READING
Cases and Relevant Articles
Articles originally published in Hong Kong Lawyer, the official journal of the Law Society of Hong Kong.