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.

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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.

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