Bind-over Orders

If there is evidence to prove a person has been dishonest or has not refrained from violence, should he or she be given a second chance? It is not uncommon that defense lawyers would suggest the alternative criminal proceedings to the prosecution to offer no evidence against the accused if he or she agrees to be bound over. S.109l of Hong Kong's Criminal Procedure Ord. Cap. 221 empowers the court to bind over a person to keep the peace and to be of good behaviour.

An initial decision for the prosecution to depart from the normal prosecution policy to the bind-over procedure requires consideration of (1) whether the public interest requires the prosecution to proceed; (2) whether the consequences to the accused would be out of proportion to the gravity of the offence, (3) the likely penalty in the event of conviction; (4) the age of the accused, (5) his or her record, (6) his or her mental state, (7) the views of the victim; and (8) the attitude of the accused. Many bind-over representations are rejected as without merit especially regarding serious offences like shop theft and possession of drugs. Furthermore, it is the court which has the power to grant a bind-over order, if thought appropriate.

For a first-time accused who admits his or her committing of a minor offence, it is worth trying the alternative criminal proceedings. The upside of a bind-over order to keep the peace and of good behaviour in specific conditions is that there is no criminal conviction record against him or her. The accused would be admonished in open court, and then gives an undertaking to the court to keep the pace and to be of good behaviour for up to two years with the added sanction that may be imposed of up to six months imprisonment for breaching the undertaking under s.61 of the Magistrates Ord. Cap. 227.

Among other situations, a bind-over order may also be made after the accused has been acquitted after trial, as in the case of Lau Wai Wo v HKSAR [2003] HKCFA 13. The fair procedural issues to be satisfied are: (1) prior notice, (2) opportunity for the accused to give evidence or make representations, (3) opportunity to seek legal advice and (4) enquiry into the means of the accused to pay. I find it interesting that such an anomalous preventive justice procedure has its origin in the 14thC England, when the concept of the police did not exist!

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