UNDERSTANDING BAIL
Liberty while proceedings/investigation continue.
Bail permits a person who is suspected of or charged with an offence to remain at liberty while an investigation or criminal proceedings continue. It reflects the presumption of innocence while allowing an enforcement agency or court to manage the risk that the person may not return, may commit a further offence, or may interfere with the proper administration of justice.
Bail is not unconditional release. The precise procedure, decision-maker and available terms depend on whether the matter remains under investigation or has already reached court.
AT A GLANCE
The bail process
BEFORE A CHARGE
Police bail
After an arrest, a person may be released while the Police, ICAC or another enforcement agency continues its investigation. Release may be on a recognizance or on cash bail. The person will usually be required to return to the relevant agency at a specified date and time.
MCS can advise at the police station or agency office, communicate with investigators, make focused representations concerning release and proposed conditions, and explain what must be done before the next bail return date.
AFTER A CHARGE
Court bail
Once a person is charged and brought before a court, the question of bail is determined judicially. Section 9D of the Criminal Procedure Ordinance provides a general entitlement to bail, subject to statutory exceptions and any conditions the court considers necessary.
The court may consider whether there are substantial grounds for believing that the accused would fail to attend court hearings, commit an offence while on bail or interfere with witnesses. The seriousness of the alleged offence, the evidence, the accused's personal circumstances and the practical safeguards offered are all relevant.
MCS lawyers frequently appear as advocates to apply for bail on behalf of clients, including contested applications where the prosecution opposes bail. We have also assisted many clients in applying to vary existing bail conditions where their circumstances have changed or a condition has become unduly restrictive.
PRACTICAL SAFEGUARDS
Common bail conditions
Conditions are tailored to the risks identified in the individual case. One or more of the following may be required.
Financial security
A specified cash deposit or recognizance may be required as security for attendance.
Surety
A suitable third party may undertake to ensure the accused surrenders to custody, sometimes supported by a financial commitment.
Travel restrictions
The court may require surrender of passports or other travel documents and prohibit departure from Hong Kong.
Residence
The accused may be required to live at a verified address and notify the authorities before any change.
Reporting
Regular reporting to a designated police station or enforcement agency may be imposed.
Non-interference
Direct or indirect contact with witnesses, complainants or co-defendants may be prohibited.
WHEN BAIL IS REFUSED
A refusal may be reconsidered.
A person refused bail by a Magistrate will ordinarily remain in custody unless bail is granted on a later application. An application may be made to a Judge of the Court of First Instance. Applications for bail pending trial in the District Court or Court of First Instance, and in certain appeal situations, are also handled in the High Court.
MCS can review the reasons for refusal, identify whether stronger safeguards or new information can address the court's concerns, prepare the supporting material, and work with experienced counsel at the High Court.