Problem Answers on Criminal Procedure and Evidence Law

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  1. (i)
In the rules of criminal procedure, a suspected person has no obligation to answer any questions because the burden of proof of a criminal case is at the prosecution side. Therefore Herman can exercise his right of silence which is protected under the Article 11(2)(g) of the Hong Kong Bill of Rights Ordinance (Cap. 383) and refuse to answer any question raised by any police officer. However, if it is the truth that Herman was in Macau from 9th to 15th September and thus it can proof that he was not able to commit violence fight in Mongkok on 10th September, I should advise him to tell this fact with good and sensible explanation to the police for his best interest. However, before he telling this fact to the police, the police must caution him before that his answer to the questions of the police must be voluntary.
  1. (ii)
The purposes of the identification parade (ID) are to test the quality of evidence and avoid mistaken identity. If the witness can identify a suspected person, it will be the most important evidence. Under Article 87 of the Hong Kong Basic Law and in the case R v Ip Lai Sheung [1988], a suspect does not have no obligation to take part in the identification parade arranged by the police and the court shall not make an inference of guilt from the fact that the suspect refused to take part, therefore Herman can object the ID. If Herman is willing to participate the ID, it should be conducted by senior police officer. During the ID, he will be arranged to line up with 7 to 8 persons with similar appearance, build, height, dress to Herman and the witness or victim will choose any position in line. To be fair to the suspect (Herman), no photos should be shown to the witness or victim and the legal representative of Herman can attend and can raise objection on the procedures during the procedure. After the ID, the record will be kept by the police. If the victim can choose one of the lineup and state he or she is the criminal, it will become a positive id. Even Herman can reject the procedure, the police may adopt other methods. For example, direct confrontation, photograph or dock identification, depends on the nature of the case and the decision of the police. Compared with ID and those alternative methods, Herman may need to sign out and those procedures may become much unfair, less protected and less reliable. Also, if it is the fact that he was not in Hong Kong during the time of the violence, there should be low chance for the witness or victim to identify him. Therefore, Herman should be advised to take part in the ID.
  1. (iii)
If Herman is not given a police bail, I will advise him to apply the court bail under section 9(d) and 9(g) Criminal Procedure Ordinance (Cap. 221)(CPO) at the time of first appearance in magistrate court. The qualified right to the court bail are under Article 5(3) and 28 Hong Kong Bill of Rights Ordinance (BORO). Under section 9(d) CPO, the suspect can admit to bail at any time and the court may object the bail only justified on three special grounds under section 9(g)(1) CPO: the first one is abscond, the second one is the suspect commit an offence whilst on the bail and the third is that the suspect may interfere or the prevent the course of public justice. Under section 9(g)(2) CPO, when the court will mainly consider the likelihood of absconding of the defendant when there is an application of the bail. Also, they will consider the nature and seriousness of offence and probable penalty, the behaviour and conduct of the suspect, the background of the suspects, health, physical and mental condition and age of the suspects, the history of the suspect and the character of the defendant. Herman may apply for a conditional court bail as he has no history of absconding and has a clear record, he works and lives with his family members in Hong Kong that shows he has a strong connection with Hong Kong and he denies the offence and shall challenge the evidence as he has proves that he was not not in Hong Kong during the time of offence.
  1. (iv)
If Herman pleads not guilty in magistrate’s court, the following trial procedures will be made. The court will start the plea taken from Herman, then the prosecution side will give the opening speech and the prosecution will give evidence of the offence by calling witnesses, producing documents and exhibits and examine in chief. Then Herman will have the cross examination to the evidence and the prosecution will give the re-examination and the prosecution will close the trial. Herman can submit of no case to answer (R v Galbraith [1982]) if Herman thinks that or the prosecution side gives no evidence or weal evidence was discredited during the trial. If the court accept the submission, the case will be thrown out. However, if the court reject the submission, there is a prima facie case to answer for Herman. Herman can either choose to give the evidence or call witnesses or else he can exercise the right of silence. If Herman select to give evidence or call witnesses, Herman side will have the examination in chief and the prosecution side will have the cross examination and Herman will then have the re-examination and then case will be closed. Both the prosecution side and the defendant will finally give the closing speech the court will give out the verdict. (b)(i) Under section 3 Juvenile Offenders Ordinance (Cap. 226), a person who is under 10 is incapable of committing an offence and he has no doli incapax (Walters v Lunt [1951]). If the defendant is ager between 10 to 14, the prosecution may rebut the presumption of doli incapax, but has to prove beyond reasonable doubt that the defendant has both actus reus and mens rea and realise what he was doing was seriously wrong. As A is only 9 years old which is not the age range to rebut doli incapax and he is not liable for any offence and can raise infancy as the defence. (b)(ii) Under section 10 Theft Ordinance, robbery is the combination of force or threat of force and the defendant had used force or puts a person into fear, that person need not be the victim in fear. The actus reus of robbery is that the defendant appropriate property which is belonging to another by use of actual or threatened force immediately before or at time of robbery and the mens rea of robbery is the defendant had intention to use force and dishonestly intended to take property with intention of permanent deprivation. In this case, B and C decided to rob the cashier of the supermarket. B pull out the gun and points at the cashier and steal money from the supermarket. A reasonable person should believe that his action will the cashier in fear at the time of robbery and therefore his act complies with the actus reus of robbery. To determine B is “dishonestly” to take the property, there is a two stage test held in R v Ghosh [1982]. The first stage is that to examine the defendant’s act according to the standards of a reasonable person and the second stage is to examine the defendant aware that his behaviour would be regarded as dishonest by ordinary persons. In this case, B’s behaviour is no doubt that not a honest behaviour to a reasonable man and he should aware his behaviour should be dishonest. Furthermore, B shall take the money which stole from the bank for permanent. From the above of that, B also has the mens rea of the robbery. Therefore B should be liable for robbery because he has both the actus reus and mens rea of the offence. Although C did not have the actus reus that to make threat to the cashier and rob the money, under s89 CPO, he act as an secondary parties who assist B, the principal of the crime, to commit robbery and had a joint enterprise that made an agreement with B before the robbery (R v Powell and Daniels [1999]). Also, there is no doubt that C has the mens rea that he intended to aid B to commit robbery. Therefore, C is also liable to the robbery. To conclude, both B and C are liable for robbery. (b)(iii) In this case, it was clear that no joint plan to kill the security guard (X) as B and C ran in opposite direction and therefore only B involved the killing of X. In criminal law, there are two types of offence on unlawful killing which are murder and manslaughter. To commit an unlawful killing, there must be established a causation for the unlawful act of the defendant in law and on the facts by the but for test. In this case, although the death of X was he banged his head against the pavement and , the main cause of the death of X is because B shoot to X by the gun which is an unlawful act in law. Although X was found to have an abnormally thin skull afterward, here are no excuse for B to raise under the Thin Skull Rule therefore there is a legal causation established between the death of X and the act of B, so the killing of X by B is unlawful. To prove B commit murder, besides the defendant’s act was an unlawful killing, it must also prove that B has the intention to kill X. In R v Woollin [1998], the court held that the jury can draw the conclusion that the defendant has an intention to kill the victim or not. In this case, X was killed solely because X chase B after the robbery and there are no proves that B had plans or intention to kill X, there are no mens rea for the murder and therefore B was not committed murder. Although B will not be charged with murder, he may be charged with manslaughter. The basis of an involuntary manslaughter is the killing is an unlawful killing, also the killing is by gross negligence from breach of duty of care, by an unlawful and dangerous act or by recklessness. The killing of X by B is an unlawful killing as proved before, thus the key issue is to determine the act of B to X is unlawful and dangerous act which is an objective standard. The elements are that defendant has done an unlawful act intentionally and the act is dangerous to cause death. A sober and reasonable man should know that shoot someone by a gun will make a risk of physical harm and may even cause death, therefore B’s act complies with an dangerous act. Since B has commit an unlawful killing with an unlawful and dangerous act but no mens rea to murder, therefore B is liable to manslaughter.
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