测试时间，现在是11:39

2011 Criminal and Civil Procedure Exam
Question 2(1)
Interview at the shop
The Secretary for Security’s Rules and Directions at Rule II provides that as soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he should caution that person or cause him to be cautioned before putting to him any questions or further questions relating to the offence. Here, when the police were called to arrive at the shop there were reasonable grounds for suspecting that Oliah (O) had committed theft because there was an accusation and because she had left the shop without paying for the hat. Therefore the police should have cautioned here before they started to ask questions. Moreover, this caution
should have been in Indonesian as her English is poor and she does not speak Cantonese The police did not do this. Therefore they should not have asked her any questions about the offence until the caution was administered in a language that O understood.
Arrest and charge
When O was arrested she should have been given the reasons for the arrest in Indonesian ( Christie v Leachinsky; Art 5(2) HKBOR). Here, she may have been told the reasons for the arrest but they were not in Indonesian. This is unlikely to be fatal as the reasons for the arrest need not be given if it is obvious (R v Howell). Arguably, here the reason for the arrest is obvious because O knew she was being arrested in relation to the alleged theft of the hat.
The Rules and Directions issued by the Secretary of Security at Rule III provides that where a person is charged or informed that he may be prosecuted for an offence, he shall be immediately cautioned. Again, this should have been cautioned in Indonesian so that O understood. This does not appear to have been done. Rule III(b) provides that after a person has been charged or informed that they may be prosecuted for an offence, the police should not put any questions to the person about the offence except in exceptional circumstances. Here there were no exceptional circumstances as O’s alleged crime could not cause any harm to any other person or the public. Therefore the police should not have put any further questions to O about the offence after she was charged or informed that she may be prosecuted.
Statement made at the police station
The first issue is that as O was not a native English or Chinese speaker, the Rules and Directions at Direction 6(a) provides that wherever possible the interview should be conducted in the accused’s mother tongue. Here, it was not possible to conduct the interview in Indonesian so the police got an interpreter. This is fine. However, Direction 6(b) then goes on to say that the statement and record of interview should be recorded in the language used by the accused making the statement or answering the questions. Here, the police writing down O’s statement wrote down his questions and O’s answers in Chinese, a language that O cannot read, write or speak. It was unfair and is of no evidential value that O signed that statement as she could neither read nor understand the contents of the statement she was signing.
Was the statement made voluntary?
The facts say that towards the end of the interview, O began to agree to the police that she committed the theft. This is a confession/admission because it is a statement against her interests. However, for this to be admissible, the confession must be made voluntarily (R v Ibrahim). Whether a confession is voluntary depends on whether it was obtained by ‘fear of prejudice or hope of advantage excited or held out by a person in authority or by oppression’ (Secretary for Justice v Lam Tat-ming). Here, arguably O’s admission was obtained out of a hope or advantage held out by a person in authority. This is because the police had communicated to O’s husband that the process would be easier if O co-operated with them. This was relayed by O’s husband to O.
Moreover, there is a question as to whether the statement was obtained by oppression. Oppression is harsh or burdensome conduct by a person in authority which tends to sap and does sap the will of an accused so that he speaks when he would otherwise have stayed silent (R v Prayer). Here, it was oppressive to interview O starting at 10.00pm and lasting until 1.00am. The facts suggest that this was not necessary and during this time O was terrified and towards the end she was too tired to argue her position anymore. Therefore, there was oppression.
Therefore O’s admission was not obtained voluntarily.
Admissibility
The trial judge should not admit the statement/confession made by O because it was not voluntary.Moreover, the judge should exercise his discretion to exclude the interview statements obtained in breach of the Secretary for Security’s Rules and Directions even though such breaches do not automatically render O’s statement’s involuntary (Li Wong-li v R; R v Chan King-nei). This is because admitting those statements when O had not been properly cautioned and being statements she signed without understanding them would have little probative value and are a breach of her right to a fair trial, self-incrimination and right to silence.
Question 2(2)
The officer in charge decides whether to grant police bail or not. His decision is not subject to appeal. However, there is a presumption that the suspect will be given bail unless the offence is serious or the officer in charge reasonably considers the person ought to be detained. Here, the offence of theft of a hat was not serious and there was no reason to otherwise keep Oliah (O) detained. Therefore she should have been given police bail. However, the police bail refusal cannot be appealed.
Question 2(3)
The starting point is that an arrested person will get bail (Article 5(3) HKBOR; Cap 221 s 9D). This is because the accused has a right to be presumed innocent. The court will not grant bail if there are substantial grounds for believing that the accused would:
a) Fail to surrender to custody as the ct may appoint (Cap 221 s 9G(a));
b) Commit an offence while on bail (Cap 221 s 9G(b)); or
c) Interfere with a witness or pervert or obstruct the course of justice (Cap 221 s 9G(c)).
Here there may be questions as to whether Oliah (O) will surrender herself to the Court of HK at the time appointed because she will likely leave HK if bail is granted and fly back to Japan. However, the Ct can impose bail conditions to ensure O will not fail to surrender to the custody of the Ct as the Ct may appoint (Cap 221, s 9D(2)(a)). This may include requiring O to post bail and have her husband be a surety for her bail. Alternatively, the Ct can grant bail on the condition that O does not leave HK. This can be ensured by requiring O to hand in her passport. Other than this, there is no reason to believe O will commit an offence while on bail because she has no prior convictions.
To support the bail application, we would also point the Ct towards the factors in Cap 221 s 9G(2) and in particular that:
a) The crime O has been charged with is minor and she is likely to be dealt with, if convicted, very lightly (Cap 221 s 9G(2)(a));
b) O’s demeanor is that she is apologetic although she maintains it was a misunderstanding (Cap 221 s 9G(2)(b));
c) O has not had any prior convictions in the past and is in a position to pay any fine levied on her for the offence if that is her sentence, which is likely (Cap 221 s 9G(2)(c));
d) The nature and weight of the evidence against O is weak given the statements made at the police station and the shop are unlikely to be admissible for the reasons discussed in Q2(1) above (Cap 221 s 9G(2)(g)); and
e) O needs to look after her 2 year old daughter when her husband runs the husband’s business (Cap 221 s 9G(2)(h)).
Therefore the factors considered by the Ct should persuade the Ct to grant O bail (albeit subject to conditions that she post bail and possible that she cannot leave HK).

2012 Criminal and Civil Procedure Exam
Question 1(1)
Yes, I would file an appeal either by:
1. Appeal by way of case stated pursuant to Cap 227 s 105 on the ground that the Magistrate has made an error of law in finding that Wai (W)’s admission was made voluntarily on the facts; and/or
2. Appeal by notice pursuant to Cap 227 s 113(1) on the basis that the Magistrate made a wrong decision on the question of law in wrongfully including W’s admission in to the evidence.
Was the admission voluntary?
Before W’s admission can be admitted as evidence, the prosecution must establish that the statement has not been obtained either by ‘fear of prejudice or hope of advantage excited or held out by a person in authority or by oppression’ (Secretary for Justice v Lam Tat-ming). Breaches of the Secretary for Security’s guidance on the taking of statements does not automatically render the statement involuntary (Li Wing-Loi v R; R v Chan King-nei) but it will be one factor which the Ct will consider.
Was there oppression?
Oppression is harsh or burdensome conduct by a person in authority which tends to sap and does sap the will of the accused so that he speaks when he would have otherwise stayed silent (R v
Prager). The intentions of the officer and the fact that the things said are true is irrelevant. Here, there may have been oppression because PW2 shouted at W, threatened her and accused her of a bogus marriage when she entered to have her interview.
W was also not allowed to make any phone calls during her interview. This is in contravention of Direction 8 of the Rules and Directions for the Questioning of Suspects and the taking of statements which provides that:
1. A person in custody or present with the police and under investigation by them should be allowed to speak on the phone to his friends and to consult and communicate with them privately (Direction 8(a)(i)); and
2. A person in custody or present with the police and under investigation by them should be allowed to have a solicitor or barrister present to advise him at any interview between that person and the police (Direction 8(a)(ii)).
These Directions extend to all other law enforcement agencies including the Immigration Department (Rule VII). Here, W was not given these rights as she was not allowed to use her phone to call
anyone. The Directions provide that this right of a person not in custody are absolute and are not subject to the condition that they should only be delayed if it would cause an unreasonable delay or hindrance to the investigation if W was allowed to make her phone call. In any event, there is no evidence that such delay or hindrance would have resulted if W had been allowed to make a phone call.
The statement
Rule V of the Rules and Directions for the Questioning of Suspects and the Taking of Statements provides that where a contemporaneous written record of an interview has been made, it must immediately after completion, be read over to the suspect and the suspect should be given the opportunity to read the statement and make corrections, alterations or additions. If the suspect cannot read or refuses to read the record, this should be recorded by the officer. Here, there is no evidence that the record was read by W or W given an opportunity to correct the record. Moreover, the record was recorded in traditional Chinese characters which W could not read. Therefore W could not verify what was written in the record. It would be unfair to say that W voluntarily signed and agreed to the contents of the record of interview when she could not read it.
Moreover, the fact that the record of interview was not recorded in Chinese characters which W could read is a breach of Direction 6 Note (c) which provides that statements from Chinese persons should be recorded in Chines characters using the interviewee’s native dialect unless he chooses to use another dialect in which he is proficient and the dialect should be stated in the statement. This meant that in this case the interpreter should have recorded the record of interview using characters that W could read and the interview should have been conducted in a dialect that W understood. Therefore the statement was not voluntarily signed by W.
Caution
It is unclear whether W was in custody at the time the interview took place. It is also unclear whether W was cautioned before the interview took place. If she was not then this is a further breach of Rule II of the Police Rules and Directions. It is also unclear whether W was informed of her rights,
particularly her right to silence as required by Direction 8(d).
Accordingly, all of the above suggests that the admission was not voluntarily made. The Magistrate accordingly erred in finding the admission was voluntary and therefore admissible.
Question 1(2)
If we pursue the appeal by way of case stated pursuant to Cap 227 s 105, the appeal will ordinarily be heard by a CFI judge on the question of law. However, we note that the appeal may also be reserved to the Ct of Appeal pursuant to Cap 227 s 118(1)(d). The burden of proof in making out the appeal
lies with the applicant. W must apply within 14 clear days of the Magistrate’s decision using Form 95 to obtain from the Magistrate a statement of findings and the case notes. W will need to prepare the case (AG v Leung Chi-Kin) including:
1. The findings of fact;
2. Submissions of the parties;
3. Decision of the Magistrate; and
4. Questions for the CFI judge.
If possible, the format and contents of the application should be agreed with the Department of Immigration. The case is then sent to the Magistrate for signature. The Magistrate may amend the case (Cap 227 s 107) or they may refuse to state the case if the application is frivolous (Cap 227 s111). However, if appropriate, the CFI can mandate the Magistrate to state a case (Cap 227 s 112). The decision of the CFI can be further appealed to the CFA.
If we pursue the appeal by notice pursuant to Cap 227 s 113(1), the appeal will be heard by a single judge of the CFI sitting in its appellant jurisdiction. The appeal must be lodged within 14 days of the date of the Magistrate’s decision. The notice of appeal must be in Form 102 and 103 of the Magistrates (Form) Rules. The Magistrate is required to prepare a signed statement of findings of facts setting out a summary of the evidence, the facts proven and the grounds for the conviction/sentence. The Magistrate provides a copy of the statement to the prosecution, the accused and the Secretary for Justice. Any decision of the CFI can be further appealed to the CFA pursuant to Cap 484 s 31.
On appeal, the CFI can receive new evidence if it thinks necessary (Cap 227 s 118(1)(b)) and can quash the conviction and/or reduce the sentence. The CFI, if it quashes the decision may substitute the decision with a decision of the CFI or it can refer the case back to the Magistrate for redetermination following the CFI’s determination of the question of law.
Question 1(3)
A convicted and sentenced accused may apply to the Magistrate for bail pending the determination of the appeal (Cap 227 s 119(1)(a)). There is no right to bail pending appeal and the presumption of innocence is no longer a consideration (R v Tam Chun-wan). Bail pending appeal is usually granted if it can be shown that the appeal is highly likely to succeed or at least is reasonably arguable (R v Lee Chi-Ching). Here, for the reasons stipulated in Q 1(1) we would argue there is a high likelihood of the appeal succeeding. The Ct will also consider whether the sentence imposed will have expired by the time the appeal is heard (R v Lee Chi-ching). Here, the sentence is for 18 mths. Given the waiting list for appeals, the appeal may not be heard within the next 18 months.
The Court may also impose conditions to the grant bail. The Ct will not grant bail if it appears to the Ct that W would:
1. Fail to surrender to custody as the Ct may appoint;
2. Commit an offence while on bail; or
3. Interfere with witnesses or pervert the course of justice while on bail (Cap 221 s 9G).
Here, none of these concerns are apparent on the facts given.
In determining whether bail should be granted, the Ct should also consider the factors at cap 221 s 9G(2). These include:
1. The nature and seriousness of the offence (Cap 221 s 9G(2)(a)). Here the offence is not serious although if convicted, W may have to face a period of imprisonment.
2. The behavior, conduct and demeanor of the accused (Cap 221 s 9G(2(b)). Here, W’s demeanor is demur. She cooperated with the police during the interview and there is no evidence that suggests she is a flight risk if bail is granted.
3. The background, associations, employment, occupation, home environment, community ties and financial position of the accused (Cap 221 s 9G(2)(c)). W has two daughters who live in HK with her now. Plus, her husband is in HK. It is unlikely that she will leave Hong Kong just to escape this trial particularly given that the evidence against her is weak and her admission set aside.
4. The accused's character, antecedents and previous convictions (if any) (Cap 221 s 9G(2)(f)) . W has had no previous convictions.
5. The nature and weight of the evidence against the accused (Cap 221 s 9G(2)(g)). The only evidence of significance against W is the admission and as discussed above this is likely to
be appealable and set aside on the grounds that the admission was not voluntary.
Therefore bail is likely to be granted.

2013 Criminal and Civil Procedure Exam
Question 1(1)
Wong (W) and Chan (C) have been charged jointly with three offences of conspiracy. The general principle is that those who commit a crime together should be tried together and it is the exception for there to be separate trials for jointed charged accused (R v Moghal). Therefore it is likely that W and C will be tried together. Assuming there is no conflict of interest in representing both W and C (and there does not appear to be on the facts), we can defend both W and C as the facts of the case and the defenses argued by W and C (if any) are likely to be similar.
Question 1(2)
If the prosecution want to ask for the maximum penalty, the trial cannot be held in the Magistrate’s court as the Magistrate’s Court can only impost a maximum sentence of 2 years imprisonment for one offence (Cap 227 s 92) and up to 3 years imprisonment for more than one offence where the terms of imprisonment run consecutively (Cap 227 s 57) and/or a maximum fine of only HK$100,000 (Cap 227 s 92). This is lower than the fine and sentence specified by Cap 134.
Therefore, the case is likely to be brought in the CFI from the Magistrate’s Court upon committal for trial. The CFI has original jurisdiction to hear cases as a superior ct of record (Cap 4, s 12(1)).
Subject to the HCO, the High Court has unlimited criminal jurisdiction. The CFI can sentence an accused for up to life imprisonment and can impose an unlimited fine.
Question 1(3)
There is a presumption that where a statute sets out a penalty, it refers to the maximum penalty not the mandatory penalty. It is rarely appropriate to impose the maximum penalty where there are mitigating factors. No sentence should be given that is longer than is necessary (AG v Ng Kin-hung) and the Ct must strive to ensure that the sentence is just and appropriate (R v Stafford). The proper approach of the court is to select a starting point and then to give discounting to reflect any guilty plea and further discounting to reflect any mitigating factors (HKSAR v Pantilanan Marivita Rosete). Here, there are unlikely to be any mitigating factors which will reduce the sentence from the starting point and our instructions are that both W and C deny the allegations against them (therefore no guilty plea). The ct must also avoid double counting (HKSAR v Chiu Suet Yee Angel).
The starting point should be directed at the offence and its seriousness (HKSAR v Lin Yu). Theoperation of aggravating factors on the starting point should be indicated. Here, the fact that W has a previous conviction for the trafficking of dangerous drugs and served 16 years imprisonment for the conviction would be an aggravating factor which would go towards increasing the starting point for W’s sentence. C does not have a similar aggravating factor as he has a clear record and a clear record has a neutral effect on the sentence (HKSAR v Wen Zelang). Both are charged with multiple offences and of conspiring with using aggression on a minor to cause the minor to commit a crime. This will likely be an additional aggravating factor that the Ct will take into account in both W and C’s sentence. Therefore, both W and C will have aggravating factors which increase the starting point of their sentence but the starting point for W’s sentence will be longer than for C’s sentence because of W’s prior conviction.
From previous cases, it appears that the ct’s starting point for the trafficking of cocaine and similar drugs is more than 20 years if the weight of the drugs is more than 600 grams. Therefore, without a guilty plea and without any mitigating factors, it is likely that if W and C are convicted they will receive a sentence in excess of 20 years imprisonment.

Question 2(1)
The offences that Mrs Chan (C) has been charged with are indictable offences. The fact that they were heard by a Magistrate suggests that they were indictable offences tried summarily. Accordingly, in this instance, an application can be made pursuant to cap 227 s 104 for the Magistrate toreconsider their decision which they made summarily. Such an application must be made within 14 clear days of the original Magistrate’s decision. The normal restrictions on the calling of new evidence do not apply in such an application. Therefore, the defense can call new and additional evidence if they wish to. However, they must explain why this new evidence was not adduced originally. The defense attorney could explain to the Magistrate that this evidence was not adduced as they were only made aware of this evidence after the conviction was handed down. Such an application is likely to be successful as the evidence is pertinent to whether Mrs C had the requisite actus rea and mens rea for the conduct of the alleged offences depending on whether the medical treatment produced any side effects on Mrs C.
The reviewing Magistrate has wide powers (Poon Chau Cheong v Secretary for Justice) and may, amongst other things, acquit base on the new evidence or reaffirm the original conviction.
Question 2(2)
If the Magistrate refuses your application to review, the defense can appeal the Magistrate’s conviction by notice pursuant to Cap 227 s 113(1) as Mrs. C is an accused who did not plead guilty. The appeal is heard by a single judge of the CFI sitting in its appellate jurisdiction. The notice of appeal must be lodged within 14 days of the date of the conviction. The ground of appeal which Mrs C may rely on may include that the decision is unsafe or unsatisfactory due to a lurking doubt (R v Cooper) however we note that this ground of appear is not easily demonstrated.
Mrs C may also argue that there was a material irregularity in the Magistrate not allowing the additional medical evidence to be subsequently submitted for consideration and that such exclusion of material evidence resulted in a procedural defect in the trial. Mrs C would argue that the appellant court should allow the appeal and consider the medical evidence and its impact on the decision.
However, the chances of such an argument succeeding are likely to be low as an appeal is not a retrial and generally there is limited scope for the appellant court to interfere with the findings of fact in the first instance (HKSAR v Raymond Chen). However, Cap 227 s 118(1)(b) does allow a CFI judge to receive new evidence if he thinks it is necessary and therefore Mrs C should argue that it is necessary in this case as the medical evidence goes directly towards whether the actus rea or mens rea of the crime are proved.
The CFI has wide powers on appeal and could quash the first instance decision and acquit Mrs C, affirm the first instance decision and sentence or affirm the first instance decision by increase/decrease the sentence given by the Magistrate.
Question 2(3)
On appeal, we should also challenge the cashier’s identification evidence. This is because an ID parade should have been held whenever it serves a useful purpose and failure to hold one might render the dock identification evidence inadmissible (HKSAR v Wong Kwok Leung). Here, no ID parade was held and no good reason was given for the failure to hold a formal ID parade (HKSAR v Wong Chi Long). However, a dock ID is permitted in a recognition case (HKSAR v Lai Pui-heung) and it is likely that the prosecution will argue that this is a recognition case as Mrs. C was a regular customer at the supermarket and lives close by and therefore the cashier has seen Mrs. C many times before. Whether this is truly a recognition case would depend on the facts and in particular how many times the cashier has seen Mrs C before and whether those ‘meetings’ were recent. If not, this is unlikely to be a recognition case and the dock ID should therefore have been inadmissible.
Question 2(4)
There is a presumption that where a statute sets out a penalty, it refers to the maximum penalty not the mandatory penalty. It is rarely appropriate to impose the maximum penalty where there are
mitigating factors. No sentence should be given that is longer than is necessary (AG v Ng Kin-hung) and the Ct must strive to ensure that the sentence is just and appropriate (R v Stafford). The proper approach of the court is to select a starting point and then to give discounting to reflect any guilty plea and further discounting to reflect any mitigating factors (HKSAR v Pantilanan Marivita Rosete). The ct must also avoid double counting (HKSAR v Chiu Suet Yee Angel).
The starting point should be directed at the offence and its seriousness (HKSAR v Lin Yu). The operation of aggravating factors on the starting point should be indicated. Here, there are no aggravating factors as the theft was non-violent, it was a first time offence and the amount stolen was small. Therefore, the starting point would be a fine or several years imprisonment at the most (HKSAR v Chan Kai-chung). Mrs. C could ask the Magistrate to order community service in lieu of any sentence to imprisonment. Such an order would be made pursuant to Cap 378 s 4(1) and the Magistrate can order up to 240 hours of community service. As Mrs. C is a first time offender, the fact that she has a medical condition, has never been in trouble with the police before and has responsibility to look after 2 children, the ct is more likely to order community service rather than impose any sentence of imprisonment in this case.

2014 Criminal and Civil Procedure Exam
Question 1(1)
There is no inherent right of appeal (R v Chau Ping). Absent a statutory right of appeal, there is no right of appeal.
The avenues of appeal from a decision of the Magistrates Court are:
1. Review of the Magistrates decision (Cap 227 s 104);
2. Appeal by way of case stated (Cap 227 s 105); and
3. Appeal by notice (s 227 s 113).
Reversal of plea
Lam (L) will not be able to withdraw the plea unless leave of a judge of the CFI is given (s 81B Cap 227) (or if the accused is appearing before the Magistrate for sentence the trial judge may, in the exercise of his discretion, allow or refuse the withdrawal of a guilty plea (R v Chan Wah [1967] HKLR 254). In exercising the discretion whether to allow a plea to be withdrawn, the Court will look at whether “at the time the defendant was required to plead, he was subjected to such pressure that he did not genuinely have a free choice.” (R v Wong Kam-chiu [1993] and R v Lam Yin [1995]). Here, L was subject to pressure from his lawyer to plead guilty because he was told that the evidence against him was overwhelming. This was a misrepresentation and as L pleaded guilty only because the true facts had been seriously misrepresented to him, then his plea will be a nullity (R v Wong Kam-chiu [1993] and R v Lam Yin [1995]).
When L asked to reverse his plea, the Magistrate did not undertake this query and therefore the Magistrate made an error of law.
Review of the Magistrates decision (Cap 227 s 104)
Accordingly, L could apply for a review pursuant to Cap 227 s 104 on the basis that the Magistrate made an error of law by failing to consider whether L’s guilty plea was made freely or whether, because it was made under pressure, it was null and void.
Usually, there is no right to call further evidence in an appeal. However, this restriction does not apply for an application to review made pursuant to Cap 227 s 104. If the parties want to call new evidence they can do so but they must explain why the new evidence was not adduced originally. Here, L can point to the failure of the Magistrate to make the inquiry into whether his guilty plea was null and void as the reason for why L was not given an opportunity to adduce evidence in his defence in the original proceedings. This may be accepted by the Magistrate and if so the reviewing Magistrate has wide powers (Poon Chau Cheong v Secretary for Justice) including to overturn the original conviction.
Appeal by way of case stated (Cap 227 s 105)
This method of appeal seeks the opinion of the CFI on a question of law and is available to both the prosecution as well as the defence. However, the grounds of appeal are limited to:
1. There was an error of law. As indicated above, the Magistrate made an error in law by failing to inquire into whether the guilty plea was made voluntarily before dismissing L’s request to reverse his plea; and
2. There was an excess of jurisdiction. Here, there is no evidence that the Magistrate exercised powers beyond what they could have exercised in a proceeding of the nature specified in the facts.
Therefore L can appeal pursuant to Cap 227 s 105 on the basis of an error of law.
Question 1(2)
Review of the Magistrates decision pursuant to Cap 227 s 104
The application for review must be made to the Magistrates Court within 14 clear days of the original Magistrates decision. A simple letter of application will be sufficient to apply. Any new decision made on the review is subject to appeal pursuant to Cap 227 s 105 or Cap 227 s 113.
The reviewing Magistrate has wide powers (Poon Chau Cheong v Secretary of Justice) including to hear new evidence and/or quash the conviction.
Appeal by way of case stated (Cap 227 s 105)
An appeal by way of case stated is made to the CFI and is heard by one judge of the CFI sitting in its appellant jurisdiction.
The applicant must apply within 14 clear days of the challenged ruling/decision. Lam must apply using Form 95 to obtain from the Magistrate a statement of findings and the case notes. The ‘case’ is prepared by the applicant (AG v Leung Chi-kin) and includes:
1. The findings of fact;
2. Submissions of the parties;
3. Decision of the Magistrate; and
4. Questions for the CFI judge.
If possible, the format and contents of the application should be agreed with the other side. The case is then sent to the Magistrate for signature. The Magistrate may amend the case (Cap 227 s 107) and the Magistrate can refuse to state a case if the application is frivolous (cap 227 s 111). However, if appropriate, the CFI can mandate the Magistrate to state a case (Cap 227 s 112) .
If the appeal is allowed, the CFI has wide powers including to confirm, reverse or vary the
magistrate’s decision or may direct that the case be heard de novo by the magistrate (Cap 227 s 119(1)(d)).
Question 1(3)
The application for review of the Magistrates decision pursuant to Cap 227 s 104
Any decision made on the review is subject to appeal to the CFI pursuant to Cap 227 s 105 or Cap 227 s 113.
An appeal pursuant to Cap 227 s 105 seeks the opinion of a judge of the CFI on a question of law. The appeal can, however, be reserved to the Court of Appeal pursuant to Cap 227 s 118(1)(d).
The grounds of appeal are limited to:
1. Error of law. This would include a circumstance where a Magistrate has come to a finding of fact which no reasonable Magistrate, applying his mind to the proper considerations and giving himself the
proper directions could have come to (Li Man Wai v Secretary for Justice); and
2. Excess of jurisdiction.
The CFI has wide powers in determining the appeal including to confirm, reverse or vary the magistrate’s decision or may direct that the case be heard de novo by the magistrate (Cap 227 s 119(1)(d)).
An appeal pursuant to Cap 227 s 113 is only available to the accused. The application must be made to the CFI and the grounds of appeal are:
1. The decision is unsafe or unsatisfactory and therefore there is a lurking doubt (R v Cooper);
2. The Magistrate made the wrong decision on a question of law; and
3. There was a material irregularity in the proceedings such as a material breach of the rules of trial.
The CFI has wide powers in determining the appeal including to confirm, reverse or vary the magistrate’s decision or may direct that the case be heard de novo by the magistrate (Cap 227 s 119(1)(d)).
The application to appeal by case stated (Cap 227 s 105)
Any decision of the CFI may be further appealed to the CFA pursuant to Cap 484 s 31. Such an appeal to the CFA will require leave. The application for leave must be made to the appeals committee of the CFA. A certificate of the CFI that the appeal is in relation to a ground of appeal set out in Cap 484 s 32(2) is required. It is exceptionally rare for the CFA to grant leave to appeal against sentence ( Tam Wa Lun v HKSAR).
Pursuant to Cap 484 s 32(2) the grounds of appeal are:
1. A question of law of great and general importance (So Yiu Fung v HKSAR); or
2. A grave and substantial injustice (Weerdenburg v HKSAR).
On appeal, the CFA has wide powers as set out in Cap 484 s 17. The CFA may confirm, reverse or vary the decision of the Ct from which the appeal lies (Cap 484 s 17(1)) and may exercise any powers of the court from which the appeal lies (including the power to order a retrial) or may remit the case to that Court (Cap 484 s 17(2)).

Question 2(1)
Theft pursuant to Cap 210 s 9 is an indictable offence. Ordinarily, indictable offences are heard with a jury in the CFI. However, with the consent of the prosecutor (Cap 227 s 94A), a special magistrate may try indictable offences summarily other than an offence in the Second Schedule (Cap 227 s 91). Theft pursuant to Cap 210 s 9 is not an offence in the Second Schedule and therefore could be tried summarily in the Magistrates Court with the consent of the prosecutor.
The District Court may hear indictable offences transferred from the Magistrate’s Court (other than indictable offences under Part III Second Schedule of Cap 227) (Cap 336 s 74 and Cap 227 s 88). Theft pursuant to s 9 Cap 210 is not within the list of indictable offences under Part III of the Second Schedule of Cap 227 and therefore can be transferred to the District Court. These transfers are made upon applicable (oral or in writing) by or on behalf of the Secretary for Justice and if made neither the Magistrate nor the accused can object to such an application (Paterson-Todd). The decision of the Secretary for Justice to apply for a transfer is not subject to appeal.
A Magistrate can and must if the prosecutor so requires, commit an indictable offence to the CFI for trail or for sentence (Cap 227 s 80A(1)). Neither the accused or the Magistrate can object to such an application (Paterson-Todd) nor is the decision of the Secretary for Justice to apply for a transfer subject to appeal.
In determining which Court the trial will most likely be held in, we need to look at the sentencing powers of the Courts and the likely sentence that the prosecutor will ask for.
Unless otherwise expressed in Statute, a permanent magistrate can only impose a maximum sentence of 2 years imprisonment for one offence and/or a maximum fine of up to HK$100,000 (Cap 227 s 92). The customary sentences and guideline tariffs specify in HKSAR v Chan Kai-chung (2001) provide that for theft under s 9 Cap 210 the customary sentence should be a fine to several years imprisonment depending on the facts. Here, the crime was none violent and no loss was suffered by the victim. The accused admitted to the crime immediately and there is no evidence to suggest that he is a repeat offender. Accordingly, it is likely that the accused will be given a fine rather than an imprisonment sentence and therefore it is likely that the sentencing powers of the Magistrates Court will be sufficient for the sentence sought by the prosecutor.
Therefore, it is most likely that the case will be heard in the Magistrates Court.
Question 2(2)
Sentencing principles
There is a presumption that where a statute sets out a penalty, it refers to the maximum penalty not the mandatory penalty. No sentence should be given that is longer than necessary (AG v Ng Kin- hung) and the Court should strive to ensure the sentence is just and appropriate (R v Stafford).
The proper approach of the Court is to select a starting point and then give discounting to reflect the guilty plea then give further discounting to reflect any mitigating factors (HKSAR v Pantilanan Marivita Roset). The court should avoid double counting (HKSAR v Chiu Suet Yee Angel) .
Here, the starting point selected by the Court was 15 months. The starting point should be directed at the offence and its seriousness (HKSAR v Lin Yu). The theft which occurred was not serious as it was a minor pickpocketing offence and conducted without arms and without violence. No one was harmed in the process and the victim suffered no loss. In these circumstances, it could be arguable that a starting point of 15 months was too high. Moreover, the operation of any aggravating factors on the starting point should have been indicated by the Court; for example, if the Court took previous convictions into account in selecting the starting point (HKSAR v Chiu Ping Kei). The Court did not specify the factors which may have increased the starting point and therefore it is unclear whether the Court double counted when it added 9 months to the starting point.

The 1/3 discount to the sentence for a guilty plea was correct (HKSAR v Lo Chi-yip). However, a further discount should have been given for the fact that the accused made restitution by returning the credit cards to the victim (HKSAR v Chan Chi-Kong).
Finally, the Court is required to consider whether the total aggregate sentence arrived at is just and appropriate in light of the criminality involved (R v K M). Here, the crime was a petty crime, no one was injured and no loss was suffered. Therefore, in light of these circumstances, it seems excessive to impose a sentence of 18 month’s imprisonment for the offence particularly when the customary sentences and guideline tariffs suggest a fine to several year’s imprisonment as the customary range for sentences of theft under s 9 Cap 210 (HKSAR v Chan Kai-chung (2001)).
Grounds for appeal
Therefore, the accused may appeal by notice to the CFI pursuant to Cap 227 s 113 on the basis that the sentence is (1) wrong in principle or in the alternative (2) manifestly excessive.
Question 2(3)
An appeal by notice pursuant to Cap 227 s 113 will be heard by a single judge of the CFI sitting in its appellate jurisdiction. The notice of appeal must be lodged within 14 days of the date of the Magistrate’s decision.

2015 Criminal and Civil Procedure Exam
Question 1(1)
There is no inherent right to appeal (R v Chau Ping). Absent a statutory right of appeal, there is no right of appeal. An appeal is not a retrial. Generally, there is limited scope for an appellate court to interfere with the findings of fact of the original court (HKSAR v Raymond Chen). The right to call for further evidence is also usually restricted.
Here, Pong (P) has reasonable grounds for appeal on each of the following grounds:
1. The decision is unsafe and unsatisfactory;
2. Wrong decision on a question of law; and
3. There is material irregularity.
Privilege against self incrimination
The Magistrate’s reasons for decision included a statement that the defendant’s silence brought suspicion on him. This wrong in law because Art 11(2)(g) of the HKBOR provides all accused with the right against self incrimination. Therefore an accused can ignore the questions of the police and the Court should not draw adverse inferences against him because of this. The onus remains on the prosecution to prove the case against the accused beyond a reasonable doubt and P has the right to be presumed innocent until proven guilty by the prosecution beyond a reasonable doubt. Therefore, the judge erred by holding that the defendant’s silence brought suspicion on him.
Police powers - arrest, search and seizure
It is lawful for the police to arrest a person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of an offence which can carry imprisonment for a first conviction (Cap 232 s 50(1)(a)). Here, the police officer reasonably suspected that P was in the act of burglary because he thought he saw P attempting to break into a store with a screwdriver.
Therefore, the police officer had the power to arrest P.
If a person has been arrested, the police can search the person and seize anything found on him or in or about the place the person was arrested (Cap 232 s 50(6)). No search warrant is required.
Therefore, the police were entitled to seize the screwdriver from P as the policeman reasonably suspected that the screwdriver would be of value in the investigation of the burglary as the policeman thought that that the weapon used to pick the padlock.
However, as soon as the police have evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he should have cautioned P before putting to him any questions or further questions relating to the offence (Rule II, Rules and Directions for the Questioning of Suspects and the Taking of Statements). This was not done. Further, P was not given reasons for the arrest at the time of the arrest (Christie v Leachinsky; Art 5(2) and 10 HKBOR).
If P had given any information to the police during the police interview at the police station, these facts would have rendered any information given by P inadmissible. However, as P exercised his right to silence and did not give any information to the police, the failure of the police to caution and to give reasons for the arrest did not by itself unjustly affect the outcome in this case.
Wrong conclusion on the facts was reached
It was common evidence admitted by both the prosecution and the defence that Mrs. Li was asked to examine her padlock and had concluded that it was in the same state as when she had put it on the door of the shop at closing the night before. Further, police forensic experts had dusted the padlock and had found no finger prints on it. Given this, there were no facts to support the Judge’s conclusion that the scratches which he found on the padlock as shown in the prosecutions photographs were caused by P. Where a Magistrate has come to a finding of fact which no reasonable magistrate, applying his mind to the proper considerations and giving himself the proper directions could have come to, this would be an error of law (Li Man Wai v Secretary for Justice). Accordingly, the judge erred in law by finding that despite the admitted facts and the evidence of Mrs Li, he was entitled to use the photographs of the padlock to assist him in determining his verdict of guilt.
The prosecutions duty to disclose
Every accused has a right to a fair trial (Art 87 Basic Law). Fair disclosures by the prosecution to the defence is an integral part of a fair trial. The prosecution has a continuing and positive duty to disclose material information to the defence (Paragraph 20 of the Department of Justice’s Statement of Prosecution Policy and Practice 2009). This duty extends to material or information which is in the possession or control of the prosecution. There is also a positive duty to ascertain and disclose the existence of scientific evidence which might assist the defence.
Here, this means the police had a duty to send the screwdriver to the forensic expert for fingerprint dusting. This, the police did. However, the police should have also disclosed to P the results of the forensic testing to P as the results of the forensic testing were relevant to an issue in the trial being whether P used the screwdriver to attempt to break into the shop. The fact that the prosecution would not have called the expert’s statement into evidence in the trial makes its disclosure even more important because unless given to the defence this information would not have been available at the trial to support the defence case or weaken the prosecutions case.
The fact that the expert statement was provided after the initial police investigation is not relevant as the police have a continuing duty to disclose and as the expert provided their statement to the police three weeks before the trial commenced, the police had sufficient time to disclose the evidence to the defence.
The police’s failure to disclose this information to the defence is a material irregularity in this trial and would, by itself, be cause for appeal.
In addition to this, the Judge made an error of law by not affording P his right against self
incrimination.
The material irregularity, the error of law and the erroneous conclusions made by the Judge based on the facts before him together also makes the Judge’s decision unsafe and unsatisfactory leaving a lurking doubt as to the guilt of P in this case (R v Cooper).
Therefore, P has good grounds for an appeal.
Question 1(2)
Jurisdiction of the Court
Burglary is an indictable offence. With the consent of the prosecutor (Cap 227 s 94A) a special magistrate may try indictable offences summarily other than an offence in the Second Schedule (Cap 227 s 91).
Burglary under s 11 of Cap 210 is not in the Second Schedule.
However, the starting point for a sentence of burglary is 3 years (HKSAR v Lau Pang). A special magistrate may only give a maximum sentence of 6 months imprisonment for one offence (Cap 227 s 91) and unless otherwise prescribed by statute, a permanent magistrate may only impose a maximum sentence of 2 years imprisonment for one offence (Cap 227 s 92).
Therefore, a magistrate would have no jurisdiction to hand down the starting sentence required for a case of burglary.
For this reason, the prosecution would need to bring the case in the district court as the district court can impose a maximum sentence of 7 years imprisonment (Cap 336 s 82(2)(a)).
Appeal procedure
Appeals from the district court follow the same procedure as appeals from the CFI. Accordingly, the appeal is appealed to 3 judges of the Court of Appeal. The notice of appeal must be made within 28 days of the conviction (Cap 221 s 83Q).\
Is leave of the Court of Appeal required?
The accused has a right to appeal to the court of appeal against a conviction on indictment where the ground of appeal relates only to a question of law (Cap 221 s 82(1) and s 82(2)(a)). If the accused wants to appeal on a ground which involves a question of fact or a mixed question of fact and law,
leave of the CA is required (unless the trial judge grants a certificate that the case is fit for appeal on a ground involving a question of fact or a mixed question of law and fact) (Cap 221 s 82(2)(b)). A ground of appeal involves a question of fact if it requires the examination of a fact in issue in the trial.
Here, P’s appeal can rely only on questions of law and does not require a judge of the CAto reexamine the facts. As shown in Q1(1), P will be able to show that the judge erred in law:
1. By holding that P’s exercise of his right against self incrimination should be used against him to draw a negative inference against P; and
2. By concluding that P attempted to break into the shop from the scratch marks on the prosecution photos of the padlock because no reasonable magistrate, applying his mind to the proper considerations and giving himself the proper directions could have come to the same conclusion.
Therefore leave of the CA is not required.
Grounds of appeal against conviction
The grounds of appeal available to P are:
1. the decision is unsafe or unsatisfactory (Cap 221 s 83(1)(a)). This can be made out because the prosecution did not discharge their duty to disclose the expert statement which showed P’s
fingerprints were not on the screwdriver;
2. wrong decision on any question of law (Cap 221 s 83(1)(b)). This is made out because:
(a) the judge made a negative inference against P because of P’s exercise of his right against self incrimination; and
(b)the judge incorrectly excluded evidence in the admitted facts that showed Mrs Li
confirmed the padlock was in the same state as that in which she left it the night before and P’s fingerprints were not on the padlock; and
3. there was a material irregularity (Cap 221 s 83(1)(c)). Here, there was a material breach of the rules of trial because the prosecution did not disclose to the defence material information for their case by not disclosing the forensic expert’s statement.
Even if the grounds of appeal are made out, the judge may dismiss the appeal if they consider there has been no miscarriage of justice (Cap 221 s 83(1)). In determining whether to dismiss the appeal on this basis, the question the ct asks is ‘would the ct below inevitably on the evidence without a doubt convict or inevitably come to the same conclusion?’ (Stirland v R). The onus is on the prosecution to prove that they would. It seems unlikely that the prosecution would be able to discharge this onus as the admitted facts (no tampering with the padlock and P’s fingerprints not being on the padlock) together with the forensic expert’s statement that P’s fingerprints were not on the screwdriver would make it difficult to discharge without a reasonable doubt that P acted in anyway to show that he attempted to break into the shop.
Therefore, P’s conviction should be quashed by the CA.

Question 2(1)
The usual procedure for a committal hearing is that the Magistrate will appoint a return date for the committal proceedings (Cap 227 s 80A(1)). The return date must not be less than 10 days nor more than 42 days from the date the return day is appointed (Cap 227 s 80A(3)). No less than 7 clear days before the return date, the accused will receive a copy of the compliant/information together with
copies of the witness statements and any documentary evidence in support of the prosecution’s case for committal (Cap 227 s 80B(1)). On the return date, the accused has the right to require a preliminary inquiry (Cap 227 s 80C(2)).
However, in this case, the prosecution may serve under s 79F(1)(a)(i) Cap 221 a notice of transfer requiring the case to be proceeded with in the CFI without delay and without a preliminary inquiry. The prosecution would be able to do this because:
1. this is an offence of sexual abuse within s 79A of Cap 221 as it is an offence against Part XII of Cap 200; and
2. the complaint is a child within s 79A of Cap 221 as she is under 17 years of age.
In order for the prosecution to make an application under s 79F Cap 221, the DPP must be of the opinion that:
1. the evidence of the offence is sufficient for the person charged to be committed for trial; and
2. it is necessary for the purpose of avoiding any prejudice to the welfare of the child that the case be taken over and proceed with without delay by the CFI.
The DPP must certify this opinion together with an affidavit setting out his reasons for this opinion.
The notice of transfer must be served on the Magistrate before the accused elect to have the charge heard at a preliminary inquiry under s 80(1)(b) of Cap 221 (s 79F(3) Cap 221). On or before the day the notice of transfer is served on the Magistrate, copies of the documents referred to in s 80B(1) of Cap 227 must be served on the accused and the originals must be filed with the Magistrate (s 79F Cap 221).
On the service of the notice of transfer, the Magistrate must, without further examination or inquiry, order the accused to stand committed for trial in the CFI on the charge specified in the notice of
transfer and shall so inform the accused or cause him to be so informed (s 79F(5) Cap 221).
The application cannot be resisted.
Question 2(2)
Sections 85A and 86 of Cap 227 apply to a committal under s 79F Cap 221 (s 79F(6) Cap 221).
Accordingly, the accused should apply for bail (if it is not already admitted by the Magistrate when the Magistrate orders the accused to stand committed for trial in the CFI) (s 85A(1)(b) Cap 227).
Separately, where a notice of transfer has been served, the accused may, at anytime before he is arraigned, apply orally or in writing to the CFI to be discharged (s 79G(1) Cap 221). The ct shall, if it appears to it that the evidence against the accused would not be sufficient for a jury properly to convict him, direct that the accused not be arraigned on the charge and direct that the accused be discharged (s 79G(2) Cap 221). This application should be made in writing unless the accused has previously given the court written notice of his intention to make this application (which, given the accused had prior notice of the prosecution’s intention to apply for a notice of transfer, the accused may have made on the return date for the committal) (s 79G(3) Cap 221).
Evidence may be called to support the accused’s application under s 79G Cap 221. However, oral evidence may only be given with the leave of the court or by its order (s 79G(4) Cap 221). No leave or order will be given by the Ct in relation to oral evidence from a child who is alleged to be a person against whom an offence to which the notice of transfer relates was committed (s 79G(5) Cap 221). Therefore, no oral evidence can be called from the compliant.
Subject to s 81E(3) Cap 221, a discharge under s 79 Cap 221 shall be deemed an acquittal (s 79G(7) Cap 221). However, the acquittal may be appealed by the Secretary for Justice to the Court of Appeal pursuant to s 81E(1) Cap 221.

Question 2(3)
As the child is a vulnerable witness, the prosecution may apply for her to give evidence via video link, in a video recording or by deposition with the leave of the Court.
As established in Q2(1) the claimant is a child because she is under 17 years of age in a sexual abuse case (which this is as it is an offence under Part XII of 200).
Therefore, if there is a video recording made of any interview between a police officer, social worker or clinical psychologist employed by the Government and the child claimant and the interview relates to any matter in issue in the proceedings, the video recording may, with the leave of the court be given in evidence (s 79C(2) Cap 221). The court must grant leave to tender the video recording into evidence unless:
1. it appears that the child will not be available for cross examination (s 79C(4)(a) Cap 221)
2. any rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the Court (s 79C(4)(b) Cap 221); or
3. the court is of the opinion, having regard to all the circumstances, that the interests of justice would require the video recording not to be admitted (s 79C(4)(c) Cp 221).
There are no circumstances which would point to the Court holding that any video recording satisfying the requirements of s 79C(2) Cap 221 cannot be submitted into evidence. Therefore, if there is a video of the initial interview when the complaint first approached the police, this video can be tendered as evidence. However, to do so the prosecution will need to call the child as a witness in the trial (s 79C(6) Cap 221).
Where a child, other than the defendant, is to give evidence or be examined on video recorded evidence given under s 79C in proceedings in respect of an offence of sexual abuse the court may, on application or on its own motion, permit the child to give evidence or be examined by way of live video link subject to such conditions as the court considers appropriate in the circumstances (s 79B(2)(a) Cap 221).
Last, where the complaint child is to give evidence in proceedings in respect of an offence of sexual abuse and in respect of such proceedings:
1. for good reason it is unavoidable that a trial cannot be heard without delay; or
2. exposure to a full trial would endanger the physical or mental health of the child,
the prosecution may apply for leave for a deposition in writing to be taken from the child by a magistrate (s 79E(1) Cap 221). However, note that an application for unavoidable delay must be supported by a certificate of the Registrar of the HC (s 79E(3)(a)(i) Cap 221) or, in the case of danger to the physical or mental health of the child, supported by an affidavit of a registered medical
practitioner setting forth the reasons for his belief of danger (s 79E(3)(a)(ii) Cap 221). There are insufficient facts to identify whether either for these conditions can be achieved in this case.

2016 Criminal and Civil Procedure Exam
Question 1(1)
There is no inherent right to appeal (R v Chau Ping). Absent a statutory right of appeal, there is no right of appeal. An appeal is not a retrial. Generally, there is limited scope for an appellate court to interfere with the findings of fact of the original court (HKSAR v Raymond Chen). The right to call for further evidence is also usually restricted. Although on a appear from the Magistrates Court to the CFI, the CFI judge can receive new evidence if he thinks it necessary (Cap 227 s 118(1)(b)).
Here, Wan can appeal to the CFI by appeal by notice pursuant to Cap 227 section 113(1). The ground of appeal that Wan would rely on is that there was a material irregularity due to a material breach of the laws of trial. This is because for trials where identification is key, an ID parade should usually be held whenever it serves a useful purpose and failure to hold one might render the other ID evidence inadmissible (HKSAR v Wong Kwok Leung). Here, no ID parade was held as the police relied on the compliant’s identification of the accused from the scene of the crime.
Should an ID parade have been held?
The ID parade is the fairest of the methods of identification. However, it should not be held where the suspect is of unusual appearance. Here, the compliant says that Wan had an unusual appearance because:
1. Wan had a distinctive mole mark on his left cheek;
2. was balding significantly; and
3. wore thick, black-rimmed glasses.
Apart from the distinctive mole mark on his left cheek, the characteristics identified by the compliant are not that unusual. Moreover, whether the mole mark was distinctive enough to warrant the lack of an ID parade depends on how distinctive the mole mark in fact was. From Wan’s perspective, he would argue that the mole mark is not that distinctive and therefore the police should have held an identification parade.
Dock identification
This is generally not allowed as a first time identification where no good reason is given for failure to hold a formal ID parade (HKSAR v Wong Chi Long). This is because it serves little probative value and is highly prejudicial . However, dock ID is permitted in a recognition case (HKSAR v Lai Pui- heung). In the trial, dock identification was allowed. However, query whether this is really a recognition case. Here, the compliant had only seen the accused twice. The first time was over one year prior to the incident in question and the second time was in a busy MTR station when she was rushing to work. Therefore, there is serious doubt as to whether the compliant would have been able to point out the accused had she been asked to do so in a ID parade line up.
In the exercise of its discretion to allow a dock identification, the Ct would have had to consider whether the prejudicial effect outweighs the probative value of the dock identification ( Wilson Alberto Corredor). Here, there was no need for the complaint to identify the accused from the dock and that should not have been allowed given that this is not truly a recognition case.
Therefore, Wan would argue that there has been a material irregularity due to a breach of the laws of trial and the CFI should allow the appeal.
Question 1(2)
A convicted and sentenced accused may apply to the Magistrate for bail pending the determination of the appeal (Cap 227 s 119(1)(a)). There is no right to bail pending appeal and the presumption of innocence is no longer a consideration (R v Tam Chun-wah). Bail pending appeal is usually granted if it can be shown that the appeal is highly likely to succeed or at least is reasonably arguable (R v Lee Chi-ching). Here, the appeal is reasonably arguable as the identity of the accused is key and there is real doubt as to the veracity of the compliant’s identification. In these circumstances, a dock identification, which is highly prejudicial and offered no or little probative value to the case, should not have been allowed to occur.
The Court will also consider whether the sentence imposed will have expired by the time the appeal is head (R v Lee Chi-ching). Here, the Magistrate sentenced Wan to two months’ imprisonment. It is highly likely that the appeal will take more than 2 month’s to be heard in which case, Wan would have already served his complete sentence. In addition to this:
1. there is no evidence to suggest that Wan will pose a flight risk (and the court can take away his passport as a condition of bail to mitigate the risk); and
2. given Wan has no history of crime or committing this offence, it is highly unlikely that he will re- offend while on bail.
Therefore, it is likely that bail will be granted pending appeal.
Question 1(3)
The prosecution’s failure to seize and disclose the MTR footage could arguably result in the decision being unsafe or unsatisfactory and accordingly be a ground of appeal pursuant to an appeal by notice brought under s 113(1) Cap 227.
Was there a prosecution duty to disclose?
Every accused has a right to a fair trial (Art 87 Basic Law). Fair disclosures by the prosecution to the defence is an integral part of a fair trial. The prosecution has a continuing and positive duty to
disclose material information to the defence (Paragraph 20 of the Department of Justice’s Statement of Prosecution Policy and Practice 2009). This duty extends to material or information which is in the possession or control of the prosecution. If the prosecution is aware of material information in the
possession of another governmental department or agency, that information must also be disclosed (HKSAR v Lee Ming-tee and SFC). Here, the footage is CCTV footage which the police had viewed. Therefore it was footage that was or had been in the possession or control of the prosecution.
Did the footage have to be disclosed?
The prosecution should disclose all material:
1. relevant or possibly relevant an issue in the case;
2. which raises or possibly can raise a new issue whose existence is not apparent from the evidence that the prosecution proposes to use; and
3. which holds a real prospect of providing a lead on evidence which goes to any of the above two grounds.
Here, the footage did not cover the area where the incident took place therefore the initial reaction is that it may not have been relevant. However, whether it was still material and relevant depends on how far away from the incident area the footage covered and the timing of the coverage as it may have, for example, contained evidence that shows the existence or possible existence of another person who could have witnessed the incident or pointed to the possibility that there was another suspect. It is difficult to say, without seeing the footage, whether it would have been material or not.
Ultimately the court needs to decide whether the decision is unsafe/unsatisfactory. Depending on the strength of the prosecution case and the other evidence lead, the existence or otherwise of the CCTV footage may not have resulted in a lurking doubt (R v Cooper) in the decision. If there is no lurking doubt, then the absence of the footage and the lack of disclosure would not result in a successful appeal.
Question 1(4)
The Court of appeal cannot hear an appeal from the Magistrates Court which has already been head by the