What is an application to permanently discontinue a hearing? What justification is needed?
Answer: In criminal cases, the court strictly abides by the principle of neutrality. Both the prosecution and the defense have the right to request that the case be advanced to trial, submitted to a judge or jury for trial and decision. However, the court has residual discretion to order a permanent termination of the hearing. Nevertheless, the court will only order a permanent discontinuation of the hearing in very exceptional circumstances.
The defense needs to prove that the prosecution abused the process (abuse of process), and even if the court takes remedial measures, the defendant still cannot get a fair trial. Common grounds for application include delay in prosecution, unfair evidence collection, and media reports before the trial, making it impossible for the jury to reach a fair verdict.
What factors will the court consider?
A: The court considers whether it is impossible for the defendant to receive a fair trial when deciding whether to grant a permanent termination of the hearing. For this reason, the defense has the burden of proof to prove that the defendant is unlikely to receive a fair trial. ” is low.
If the defense cited delay in prosecution as an example, the court would consider whether the defendant’s ability to properly prepare his defense would have been seriously impaired by the delay in prosecution without reasonable excuse.
Has there been any successful application for permanent termination of hearing in criminal cases in recent years?
A: In 2010, there was a rare case of “HKSAR v WONG HUNG KI (黄洪基)” that successfully applied for permanent termination of hearing【Related Judgment Links]the court ordered the permanent termination of the hearing on the grounds that the investigators of the ICAC secretly recorded the conversation between the defendant and the lawyer representing him. The court ruled that this behavior violated the “legal professional privilege” and prevented the defendant from receiving a fair trial. Although the prosecution applied to the Court of Final Appeal for leave to appeal, it was rejected. The defendants in the case were released without trial.
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