Facing a criminal prosecution can be frightening and stressful. Possible consequences include a fine, imprisonment, a community service order, and—most concerning for many people—a criminal conviction record (commonly known as a “criminal record”). A conviction can have long-term effects on education, employment (especially disciplined services / finance / education), professional licensing, and travel or immigration plans.

While most people think the only options are to plead guilty or plead not guilty, there is, in suitable cases, another possible way forward: to apply for an Offer No Evidence Bind-over Order (also known as “O.N.E. Bind-over” or “ONEBO”).

If both the Prosecution and the Court agree with this approach, the offender will generally not have a conviction record arising from the case.

When Is a Bind-over More Likely to Be Suitable?

A bind-over is more commonly considered in less serious cases, particularly where the following factors are present:

• The offender is a first-time offender
• The incident is not organised and not part of ongoing or repeated offending
• There has been settlement / compensation / remediation (especially where there is a victim or property loss)
• The offender has a stable background (work, family, studies) and can provide good character evidence

Common Types of Cases Where It May Be Considered

Depending on the facts and the offender’s background, a bind-over is more often seen in cases such as:

• Common assault
• Fighting in public place
• Criminal damage
• Criminal intimidation
• Ill-treatment or neglect of a child or young person
• Breach of conditions of stay
• Minor public order offences

In some cases, offences such as theft, possession of dangerous drugs, or possession of poisons under Part 1 may still be considered for a bind-over. However, the Prosecution will also weigh factors such as public interest, the prevalence of the offence, and the need for deterrence. Whether it is realistic often depends on the amount/quantity involved, the circumstances, and the offender’s personal background.

What Does the Prosecution Usually Consider?

In deciding whether to agree to disposal by bind-over, the Prosecution will consider the facts of the case and typically also:

• Whether prosecution is in the public interest
• Whether the consequences to the offender would be out of all proportion to the gravity of the offence
• The likely penalty in the event of conviction
• The age of the offender, his or her record, character, mental state (at the time of offending and presently)
• The views of the victim
• The attitude of the offender to the offence

Why You Should Speak to a Lawyer Early

If you are facing prosecution, you should seek legal advice as early as possible. This is because a bind-over often needs to be pursued at an early stage of the proceedings (commonly before a plea is taken), and relevant materials must be well-prepared and submitted to the Prosecution and the Court.

Overview of the Process

1. Your lawyer reviews the facts and evidence and assesses the prospects of seeking a bind-over;
2. Statements and supporting documents are prepared (e.g. character references, medical reports, proof of remediation/compensation, etc.);
3. Your lawyer writes to the Prosecution with written submissions seeking disposal by bind-over;
4. If the Prosecution agrees, the offender will usually need to admit the Prosecution’s case in court and confirm willingness to be bound over;
5. Your lawyer will invite the Court to approve the bind-over, because the Court may refuse to grant it even if the Prosecution consents.

If approved, the Court typically orders the offender to be of good behaviour for a specified period and to provide a recognizance (a sum of money as a form of assurance). The bind-over period can range from months to years (commonly around 12 months, and in many cases not more than 3 years, depending on the circumstances).

If the offender breaches the conditions or reoffends during the bind-over period, the Court may take further action (e.g.  forfeiture of the recognizance) and it may negatively affect the handling of any future case.

How We Can Help

• Quickly assess whether your case may be suitable for a bind-over application
• Prepare supporting materials and a clear strategy
• Communicate with the Prosecution and prepare written submissions
• Appear on your behalf in Court to seek an bind-over order

Ariel Kong, Associaate

arielkong@hkytl.com | +852 3468 7358

This article is introductory in nature. Its content is current at the date of publication.  It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice based on your specific circumstances before taking any action relating to matters covered by this article. Some information may have been obtained from external sources, and we cannot guarantee the accuracy or currency of any such information.