When faced with criminal charges, oftentimes the biggest fear among lay clients is the grave consequences from having a criminal record. Besides the stigma, a person with a criminal record might encounter various practical difficulties later on in life, in areas such as career advancement and immigration.
In appropriate cases, practitioners could advise their clients on the possibility of making O.N.E. bind-over representations to the Department of Justice, which could spare them from having a criminal record if the Department of Justice accedes to those representations.
As explained by the then Director of Public Prosecution in an article titled “To Bind Over, Or Not?” published in 2001, the Department of Justice would consider to dispose of a case by way of the bind-over procedure “if the consequences to the accused will be out of all proportion to the gravity of the offence”.
Under section 109I of the Criminal Procedure Ordinance, the judge or magistrate has the power to bind over a person who or whose case was before the court irrespective of whether he has been convicted of an offence. The bind-over procedure is a preventive measure whereby the court adjudges a person to enter into a recognisance and find sureties to be of good behaviour or to keep the peace for a period not exceeding two years. (See HKSAR v Lau Wai Wo (2003) 6 HKCFAR 624 at para. 39)
With a bind-over order granted by the court, by reason of the Prosecution agreeing to the same and offering no evidence to prove its case, the offender is technically acquitted of the criminal charge and will therefore have no criminal record. However, failure to comply with the undertaking may result in up to 6 months’ imprisonment in accordance with section 61(1) of the Magistrates Ordinance.
In appropriate cases, practitioners, on behalf of their clients, may consider making written representations by way of a letter to the Department of Justice for cases involving first-time offenders and minor offences. In general, subject to the facts of the particular case and the personal background of the defendant, offences such as theft (shoplifting), criminal damage, common assault and unlawful fight in a public place have in the past been disposed of by the way of a bind-over order.
Yet, practitioners should also bear in mind and advise their clients that a binding-over arrangement is certainly not guaranteed, and is an exception rather than the norm even for less severe offences.
When preparing bind-over representations, the following factors as set out in the Prosecution Code should be considered:
a) whether the public interest requires the prosecution to proceed;
b) whether the consequences to the offender would be out of all proportion to the gravity of the offence;
c) the likely penalty in the event of conviction;
d) the age of the offender, his or her record, character, mental state (at the time of offending and presently);
e) the views of the victim;
f) the attitude of the offender to the offence.
While some of these factors fall outside the control or even the knowledge of the practitioners making the representations, they should gather and assess as much as possible the information and evidence relevant to these factors, and seek to address the same in the written representations.
In practice, practitioners should be aware of the following issues before and after making O.N.E. bind-over representations:
1) The Timing for Submitting the Representations
After considering all kinds of factors listed above, practitioner should normally submit the bind-over representations after the charge is laid by the Police or any other law enforcement agency, but preferably before the mention hearing, and in any event before the client takes plea.
2) Instructions to be Taken From the Client
Detailed instructions including personal background such as education level, employment status and history, as well as family background, and any extenuating circumstances such as health conditions along with any possible explanations which could show that the client acted out of character at the time of the offence, that it was a one-off instance and unlikely to be re-offended in the future, should be taken from the client.
3) Tone of the Written Representation
Throughout the written representation, practitioners should deploy a tone that is courteous and sincere, while not excessively apologetic, to illustrate all factors that make the client worthy of consideration for a bind-over arrangement. In any event, it is not advisable to “demand” such an arrangement from the prosecution.
4) Explanation of the Bind-Over Procedure to Client
In the event that the Prosecution agrees to the bind-over arrangement, clients need to be advised that they would need to agree to the contents of the brief facts in open court, and that they would promise to keep the peace within the time period prescribed by the judge or the magistrate, as well as the consequences of breaching the terms of the bind-over order.
5) Follow-up Action
Due to the large volume of cases handled by the Department of Justice, it may take some time before the relevant case file is passed on to the particular Court Prosecutor or Public Prosecutor in charge of the case. The prosecutor may obtain the case file weeks ahead, or at times only 1-2 days before the mention hearing. Also, further supplemental information or evidence to substantiate the representations may be required afterwards.
The bind-over procedure serves the ends of the preventative justice and the rehabilitation of the offenders. It can be a useful mechanism beneficial not just to the client, but also to the society in general. Practitioners should diligently assess the suitability of the bind-over procedure, and in appropriate cases, make effective representations to the Department of Justice on behalf of their clients.
– Eric Chan CPH Legal