OFFER NO EVIDENCE
An alternative way to dispose of a criminal case
The authority to initiate, conduct or discontinue public prosecutions in Hong Kong rests with the Department of Justice under the direction of the Secretary for Justice. That discretion must be exercised on the evidence and in the public interest.
A criminal conviction may have lasting personal and professional consequences. For some first-time offenders facing minor allegations, an Offer No Evidence bind-over order may provide a proportionate resolution without a conviction being recorded.
THE PROSECUTION TEST
The public interest discretion
The Department of Justice governs all criminal prosecutions in Hong Kong. A prosecution should proceed only where the available admissible evidence provides a reasonable prospect of conviction and the public interest requires the prosecution to continue.
In assessing the public interest, prosecutors may consider the nature and seriousness of the alleged offence, the person's culpability, age, record, character and mental state, any cooperation or demonstrated remorse, the views of the victim and the availability of an effective alternative to prosecution.
For a first-time offender facing a minor or non-serious allegation, the consequences of a conviction may be disproportionate to the gravity of the conduct. In an appropriate case, the prosecution may agree to dispose of the matter by offering no evidence on condition that the defendant enters into a bind-over order.
AN ALTERNATIVE DISPOSAL
What is an O.N.E. bind-over order?
A bind-over order is a preventive measure rather than a sentence following conviction. The procedure draws on the court's common law and statutory powers, including section 61 of the Magistrates Ordinance (Cap. 227).
The defence makes representations asking the prosecution to dispose of the charge by an Offer No Evidence bind-over order. If the prosecution agrees, it offers no evidence at the hearing and asks the court to withdraw or dismiss the charge on the agreed basis, subject to the defendant entering into a recognizance and accepting the relevant facts. The court will then consider the application and make an order accordingly.
The defendant undertakes to keep the peace and/or be of good behaviour, usually subject to specified conditions, for a period fixed by the court of up to two years.
The defendant promises to pay a specified sum if the undertaking is breached. The sum is ordinarily pledged rather than paid immediately when the order is made.
THE RESULT
The legal effect of a bind-over
When the prosecution offers no evidence, no conviction is recorded against the defendant. The defendant must admit the agreed facts and comply fully with the recognizance and any conditions imposed by the court.
A bind-over should not be treated as an automatic outcome or a simple warning. The prosecution and the court must be satisfied that the order is supported by the facts and serves the interests of preventive justice. A failure to enter the recognizance or a breach of its terms may have serious legal consequences.
LEGAL REPRESENTATION
Making representations for a bind-over
A request for a bind-over requires careful analysis and persuasive representations tailored to the evidence, the alleged conduct and the client's individual circumstances. The prosecution will consider each case on its own facts; serious or prevalent offending is less likely to be resolved in this way.
MCS can review the prosecution materials, identify evidential or legal issues and assess whether the case is suitable for a bind-over proposal.
We can prepare focused representations to the prosecution explaining why an Offer No Evidence bind-over order would provide an appropriate and proportionate resolution, and explain why it is not in the public interest to proceed with the prosecution.
We can assemble character references and supporting material addressing the client's record, remorse, rehabilitation, personal circumstances and any other factor relevant to the public interest.
If the prosecution accepts the proposal, MCS can explain the agreed procedure, advise on the recognizance and conditions, and represent the client at the hearing.
OFFICIAL GUIDANCE