Originated from Portugal, the overall legal system of Macao, including the legal system of penal procedure, is of basic characteristics of the continental law system of Europe.

In a period of more than 60 years that ended on April 1, 1997, the legal system of penal procedure in force in Macao mainly included the 1929 Code of Penal Procedure of Portugal extended to Macao for local application as well as a series of decree-laws and regulations enacted by Portuguese legislative authorities and extended to Macao for their application in the region.

The existing legal system of penal procedure of Macao is mainly embodied in the Code of Penal Procedure of Macao enacted by the Legislative Assembly of Macao that went into force on April 1, 1997. Besides, before the resumption of the exercise of sovereignty over Macao by the People's Republic of China on December 20, 1999, the Constitution of Portugal was in force Macao. The provisions on fundamental principles of the legal system of penal procedure prescribed by this law also constitute a major source of the legal system of penal procedure of Macao.

Moreover, the laws or legislation on the operation of juridical organizations in Macao constitute another major source of the legal system of penal procedure of Macao.

The Code of Penal Procedure of Macao enacted in 1996 that went into force on April 1, 1997 consists of 499 articles in a total of 11 volumes divided into two parts. Each of the two parts consists of sections in chapters in books. Part One consists of five volumes, which are on general provisions. This part covers such contents as the subject of procedure, the act of procedure, evidence, coercive measures, guarantee of property and relationship with authorities out of the region. Part Two is on sub-provisions, which prescribe the processes and rules for all the stages of the penal procedure, including criminal prosecution, investigation, accusation, adjudication and execution.

The 1996 Code of Penal Procedure of Macao strictly divides the power of the prosecution, preliminary judges and judges of the trial bench from one another, and grants to the prosecution the power to lead criminal investigation, changing the system of preliminary hearing applied in the past, simplifying the contentious procedure, shortening the overall period of action and promoting the efficiency of action. It specifically defines the rights, obligations and status in action of all subjects of procedure, legalizes the means of proof of the modern society, and enables the operation of the coercive measures to better suit the social realities and characteristics of Macao. Although the Code of Penal Procedure of Macao extremely resembles the Code of Penal Procedure of Portugal newly amended in 1987 both stylistically and structurally, the concrete regime of this law is intended to protect the society of Macao and its fundamental value, particularly to maintain the public order, social tranquility and the stability of law in the region.

The general principles of penal procedure defined by the Code of Penal Procedure of Macao are as follows:

Ex officio principle is also known as the principle of function and power. It means that the public entities with the power granted by law shall institute and conduct criminal proceedings against criminal acts, and bring them to trial by means of their power. In dong so, they will not be subject to the restriction of any judgment on whether it is appropriate to institute and conduct the criminal proceedings. Under this principle, juridical authorities shall perform their duties in accordance with the power granted by law. For example, the prosecution shall promote proceedings and bring accusations while the judges with general competent courts shall conduct trials.

Through this principle, we can ensure that all citizens are equal before the law, and will not allow any criminals to enjoy privilege exceptionally.

Of course, there is an exception to this principle, which, however shall be subject to specific provisions of law and shall be out of the consideration of basic criminal policies. For example, where a case only involves unessential interests, or where other worthy interests, such as the dignity of the victim, should be protected, any criminal investigation could even more seriously harm such interests. So, where a certain criminal act is defined by law as a private offense or a quasi-public offense, the launch of criminal proceedings will be based on the will of the victim rather than the function and power of competent authorities.

Therefore, the exception to ex officio principle defined by law means that where cases involve private offenses or quasi-public offenses, or where the victims do not report the offenses to the authorities or even do not plan to lodge a private prosecution, the prosecution can not prosecute the offenders for the offenses by means of their power, and that criminal proceedings against such offenses will depend on the existence of conditions for prosecution.

The provisions of these two principles are based on the nature of the criminal law. The criminal law is intended to protect social organizations and the basic value of common life to meet the overall interests of the society. Because of this reason, the authorities that need investigations or even need court trials shall have the full authority to find out the truth – not only in form, but also in substance. For the prosecution and judges, they shall endeavor to seek truth under any circumstances. In order to attain the target of finding out the truth, the entities concerned shall have the authority to investigate evidence of their own accord.

This approach, however, does not necessarily mean that the entities concerned can arbitrarily manipulate legal proceedings. It only means that the authorities in charge of investigation can take the initiative to find out the truth by taking necessary measures prescribed by law.

According to the Code of Penal Procedure of Macao, the prosecution, in the period of their investigation, will not be subject to restriction in using this or that type of means of proof, because they are under the obligation to take all actions necessary for achieving the result of investigation. In the period of preliminary hearing, preliminary judges have the authority to choose the means of proof needed for attaining the target of preliminary hearing.

In the period of trial, the courts concerned have the authority to order the investigation of all evidence they consider as necessary for finding out the truth.

Penal procedure itself is a sufficient legal process. To institute and promote criminal proceedings is not dependent on other procedures. Moreover, all the relevant issues that should be settled in advance for the final judgment shall be settled in this process.

According to the principle of sufficiency for penal procedure, criminal judges can make a ruling on all the pretrial issues. The so-called pretrial issues refer to all non-criminal issues that can make up independent objects of action in separate legal proceedings. And, such issues in individual cases must be settled in advance in order to make criminal rulings properly.

According to the Code of Penal Procedure of Macao, when a judge encounters a pretrial issue before he makes a criminal ruling, namely when he first of all should settle a non-criminal issue that can not be appropriately settled in criminal proceedings, he can suspend the criminal proceedings for a period of time, in order that the relevant court with the jurisdiction over the pretrial issue can make a ruling on it. But, at the end of the period of suspension, if no lawsuit has been instituted for the settlement of the pretrial issue, or if the lawsuit already filed for the settlement of the issue has not completed, the judge in charge of the original criminal proceedings shall settle the issue in the legal process. On the other hand, the law requires or permits the making of civil compensation claims in criminal proceedings for damages caused by criminal delicts.

Subjects of action in criminal proceedings shall have the right to express their opinions on the claims or statements made by other subjects. The principle of debate runs through the whole of legal proceedings. For example, the Code of Penal Procedure of Macao prescribes preliminary hearing through debate, which allows the relevant subjects to orally debate before preliminary judges about the signs of facts and legal materials obtained in the process of investigation and preliminary hearing, to see whether they support the trial of the suspects concerned. For contingent issues that occur in the hearing of evidence, the courts concerned shall make a ruling on them after hearing the relevant statements made by the interested subjects concerned. Besides, the submission of evidence in the process of hearing shall also be in compliance with the principle of debate.

The 1996 Code of Penal Procedure of Macao prescribes the following major contents besides the above-mentioned general principles:

(I) The Code of Penal Procedure of Macao is applicable to the trial of all crimes and trivial criminal offenses. Criminal proceedings are divided into the ordinary process and the special process. The ordinary process includes the trial by the collegiate bench and the trial by the sole-judge bench⁽¹⁾. The special process can be the simple process, the simplest process or the correctional process. The simple process is used to try offenders at the age of 18 or higher who are punishable by a prison term of not more than three years, who are caught red-handed by juridical authorities or police, and who are sent within 48 hours to the Court of General Competence for trial. The correctional process is a type of special proceedings used to particularly try trivial criminal offenses⁽²⁾.

(II) Under the Code of Penal Procedure of Macao, criminal offenses will continue to be divided into three forms – public offenses, quasi-public offenses and private offenses. For criminal offenses with different characteristics, the prosecution will adopt different approaches in participating in the relevant legal proceedings to try them accordingly. Whether the prosecution will institute legal proceedings against public offenses does not depend on the will of the victims or their agents. But whether to start legal proceedings against quasi-public offenses and private offenses will depend on whether the victims or their agents will lodge an accusation to the prosecution or other juridical authorities against the offenses or on whether they will initiate a private prosecution.

(III) According to the Code of Penal Procedure of Macao, the power of investigation into criminal cases mostly belongs to the prosecution, and partially belongs to the Criminal Preliminary Hearing Court. For criminal police authorities of Macao (Judicial Police, Brigade of Public Security Police and Maritime and Fiscal Police Corps), they can participate in the work of investigation into criminal cases with the authority extended by the prosecution or courts in accordance with law.

(IV) The Code of Penal Procedure of Macao prescribes the concept of "subjects of procedure." Subjects of procedure refer to all the authorities and individuals that directly participate in criminal proceedings and affect the steps of proceedings to form a certain legal relationship of penal procedure. Not all the participants in legal proceedings can become subjects of procedure. Only the entities and individuals capable of playing a role in promoting or deciding the progress of criminal proceedings can become subjects of procedure. Subjects of procedure include judges, the prosecution, criminal police authorities, suspects and their defenders and assistants as well as civil litigants.

(V) The Code of Penal Procedure of Macao prescribes the concept of "actions of procedure." Actions of procedure refer to any actions or activities conducted by juridical or police authorities or conducted by their orders that form a legal relationship of criminal proceedings as defined by the Penal Code of Macao, such as the registration of cases for investigation, the institution of prosecutions, trial and interrogation of suspects. Besides, all the activities conducted by other subjects of procedure that will lead to certain consequences of legal proceedings can also be viewed as actions of procedure, such as the lodgment of accusations by the victims or their renunciation of accusations or private prosecutions.

(VI) Under the Code of Penal Procedure of Macao, preliminary hearing is not an indispensable process for all criminal proceedings. Preliminary hearing will be conducted only when the accused or victims in cases that have been placed on file have made a claim for preliminary hearing within the legal time limit that is considered by judges concerned as meeting the requirement for preliminary hearing. Such a provision on the part of the Code of Penal Procedure of Macao has served to greatly simplify the relevant legal procedure, promoting the efficiency of criminal proceedings.

(VII) In terms of the system of evidence, the Code of Penal Procedure of Macao legalizes the means of collecting evidence that meet the requirement of the modern society, such as the monitoring of telephone conversations. However, the law provides for very strict restriction on the practical application of such means, in order to avert the violation of fundamental rights and freedom of citizens by the use of new means of collecting evidence. The Code of Penal Procedure of Macao provides for implementing in legal proceedings the principle of adducing evidence freely, the principle of legality of evidence, the principle of examining and verifying evidence freely, the principle of In Dubio Pro Reo (in doubt, pro defendant) and the principle of directly using evidence. The means of proof prescribed by the law are in seven major categories – the testimony of witnesses, statements made by suspects, assistants and civil litigants, evidence through confrontation, evidence through debate, reconstitution of facts, identification evidence and document evidence.

(VIII) In terms of the system of coercive measures, the Code of Penal Procedure of Macao has readjusted and redefined the categories and contents of coercive measures in an effort to bring them in line with the social realities in Macao and the requirement of proceedings. According to the law, the application of coercive measures must meet the principle of legality, the principle of appropriateness and moderateness, the principle of provisionality and the principle of supplementary preventive detention. The coercive measures defined by the law are in six categories – bibliographies of identity data and residences; guarantees⁽³⁾; the obligation to regularly report to competent authorities; prohibition from exit, contacts, duties and professional activities; suspension of the exercise of rights; and preventive detention.

(IX) Under the Code of Penal Procedure of Macao, the penal procedure generally includes the phases of registration of cases, investigation, preliminary hearing, adjudication, ordinary appeal, extraordinary appeal and execution. The phase of adjudication can be divided into three parts – the antecedent action, hearing of evidence and ruling. The antecedent action includes pretrial examination and preparation. The hearing of evidence means the holding of a court hearing. And ruling is the consequence of judgment on a case made by a court.

Before 1991, the juridical organizations in Macao were merely appendages to Portuguese juridical authorities, and the courts in Macao were affiliated to the Court of Appeal in the Judiciary District of Lisbon in Portugal. Before that year, all appeal cases had to be adjudicated by the Court of Appeal in the Judiciary District of Lisbon, while the courts in the Sub-Judiciary District of Macao only had the authority to make the first-instance judgment on general cases.

In order to meet the requirement of Macao’s return to China and ensure the judicial independence of the courts in the Macao Special Administrative Region, it is necessary to gradually establish an independent judicial system in Macao by the year 1999. On the basis of such a consideration, Portugal amended its 1976 Constitution in 1989. Clause 5 in Article 292 of the amended Constitution of Portugal prescribed that the region of Macao would possess its own judicial system, which would enjoy autonomy, would meet the characteristics of Macao and would be under the principle of ensuring the independence of judges.

In accordance with the spirit of the amended Constitution of Portugal, the Organic Statute of Macao was amended in 1990. The amended Organic Statute of Macao stipulated that Macao would gradually possess an autonomous judicial system, and that at an appropriate time, the Portuguese president would grant the full and exclusive right of jurisdiction to the courts in Macao.

In 1991, Portugal promulgated Law No. 112/91, which is also known as the Law of Bases of the Judicial System of Macao. This law provided for the reform of the judicial system in Macao, the establishment of the Higher Court of Justice and the Audit Court, the improvement of the operation of the courts in the Sub-Judiciary District of Macao, including the Criminal Preliminary Hearing Court, and the establishment of the Court of General Competence on the basis of the courts in the Sub-Judiciary District of Macao. This law also provided for the transfer of the jurisdiction previously reserved for the Lisbon-based Supreme Court of Justice, the Constitutional Court and the Supreme Administrative Court of Portugal to the corresponding courts in Macao after they were granted the full and exclusive right of jurisdiction.

In an effort to coordinate the establishment of these new juridical organizations with the reform of the existing judicial system, Macao promulgated in 1992 three supplementary decree-laws – the General Regulation of the Judicial System of Macao (Decree-Law No. 17/92/M), the Organic Law of the Audit Court of Macao (Decree-Law No. 18/92/M) and the Statute of Magistrates of Macao (Decree-Law No. 55/92/M).

The entry into force of the Law of Bases of the Judicial System of Macao and the three supplementary decree-laws laid the most fundamental organic foundation for the autonomy of the judicial system of Macao, and led to profound changes in the judicial system of Macao.

In terms of the penal procedure, with the establishment of the Higher Court of Justice of Macao, the cases of appeal against judgments made by the Court of General Competence of Macao no longer need to be transferred to Portugal for final judgment.

On March 20, 1999, Macao Official Gazette published the Presidential Decree No. 118-A/99 of the Portuguese Republic. This presidential decree says that, whereas the Constitution of Portugal and the Organic Statute of Macao prescribe that the region of Macao possesses its own judicial system which enjoys autonomy and meets the characteristics of Macao, and in accordance with the experience of Macao in limited judicial autonomy over the past six years, the president of the Portuguese Republic holds that it is the appropriate time to grant the full and exclusive right of jurisdiction to the courts in Macao. Under this presidential decree, the courts in Macao gained the full and exclusive right of jurisdiction on June 1, 1999. On the basis of the March 20 presidential decree, the government of Macao promulgated Decree-Law No. 20/99/M on May 24, which went into effect on the day when the courts in Macao gained the full and exclusively right of jurisdiction.

The above-mentioned laws and decrees are legal instruments designed for the establishment and operation of the judicial organizations in Macao, and also make up a major part of the penal procedure law system of Macao.

To sum up, the penal procedure law system of Macao is of marked characteristics of the continental law system of Europe, and basically implements the ex officio principle and the principle of ex officio doctrine. It is also similar to the criminal procedure law system of the Chinese mainland. However, through the brief introduction in the above, the difference between the two systems is also obvious.

1. For criminal offenses publishable by a prison term of not less than three years, they are generally tried by the collegiate bench, except the trial of such offenses in absentia. For other types of criminal offenses, they are generally tried by the sole-judge bench.
2. Trivial criminal offenses refer to delicts only in violation or defiance of laws or rules (except for the provisions of the criminal law).
3. Such guarantees are limited to guarantees of property only.