Summary conviction and conviction upon indictment

For many offences, the legislation provides for a particular level of maximum penalties upon summary conviction and a higher level of maximum penalties upon conviction on indictment. For example, Section 18 of the Trade Descriptions Ordinance (Chapter 362) provides that any person who commits an offence under Section 7 or Section 9 shall be liable “(a) on conviction on indictment, to a fine of $500,000 and to imprisonment for 5 years; and (b) on summary conviction, to a fine at level 6 and to imprisonment for 2 years.” A fine of level 6 means a maximum fine of $100,000 according to Schedule 8 of the Criminal Procedure Ordinance (Chapter 221). But what is the difference between conviction on indictment and summary conviction?

Indictment refers to the formal document used for setting out the charge against a defendant triable by a jury in the Court of First Instance. Hence, a conviction on indictment means a conviction in the Court of First Instance triable by a jury.

For a conviction in the District Court, strictly speaking this is not a conviction on indictment, because this is not a trial by a jury, but by a single District Court judge. However, Section 82(5) of the District Court Ordinance (Chapter 336) provides that “Where by any enactment the Court of First Instance is empowered to impose any punishment upon…a person who has been convicted on indictment of an offence, the [District] Court shall, subject to the provisions of this section, have like powers in relation to a person convicted of such offence”. Section 82(2) provides that notwithstanding that proceedings have not been taken by way of indictment, the District Court may impose any penalty and make any order provided by law for or in connection with any offence provided that it cannot pass any sentence of imprisonment exceeding 7 years. Hence, the higher level of penalties for a conviction on indictment set out in any legislation will generally be applicable to a conviction in the District Court, subject to a maximum limit of 7 years’ imprisonment.

Any conviction in the Magistrates’ Court is a summary conviction, and so the lower level of maximum penalties will apply.