Criminal Procedure brief

Q1 – What steps should you take in police station to protect Alex’s rights?

Potential breaches by police: [use a structured

approach to this question]
- Alex has been knocked unconscious and suffered concussion.
- Threatened by police
- Was framed by police
- Not given immediate medical attention  violate Direction 4
- Alex not given a chance to read his confession before signing  violate Rule 4 and 5
- At police station, Alex is bruised and disoriented

What should you do:

- Speak to Duty Officer, ask to see client immediately
o Refer to Direction 8 when client is refused access to lawyer
 May be refused to meet client if the case is very serious
 30g of cocaine
 Was found at Macau Ferry Terminal  might be suspected of
trafficking drugs to foreign location and is part of an
international syndicate
 Mark down who refuses you to meet client
- Lawyer is engaged by Alex wife  make sure Ales does wish to engage this lawyer
o Sign retainer letter under Rule 5D

Regarding Alex’s injuries:

- Ask Duty Officer to immediately take client to hospital and to be examined by doctor
- Lawyer to record, draw, or take polaroid photos of physical injuries of client
- Note that Alex seems disoriented
- Ask if alex wishes to make a complaint against police
- Ask Duty Officer to note lawyer’s visit in the Occurrence book and of Alex’s injuries

- Obtain further details from Alex (if he is well enough to speak)

- Ask Alex not to say anything further to police w/o lawyer’s presence (right to remain
silent)
- Tell police officer that client would not be making a statement, and ask police to call
you if they wish to take another statement from client (leave your name card w/ police
and client)
- Ask Duty Officer to give you a copy of Alex’s confession

Advice client regarding his bail prospects

- Unlikely, since caught w/ drugs on him and is trying to leave the jurisdiction

At first court appearance, tell court that you would challenge the voluntariness of the
confession made, but don’t go into the details

1
2
Grounds of violation:
- Oppression: tackled to the ground, suffered unconsciousness and concussion 
Violate principle E
- Alex was handcuffed in interview room  unnecessary to handcuff an unconscious
suspect at the police station
- Not given a chance to read confession before signing
- Threatened / induced by police officer
- Framed  violate principle E
- Not given immediate medical attention

3
√ Q2 – Comment on the police’s powers to search the contents of Alex’s phone
(topic 2)

- S.50(6): police can search the arrested person and seize items found of value w/o
warrant
- S.50(6) & Sham Wing Kan does not allow officers to search through digital contents
of phone
- May only search through phone content w/ warrant under s.50(7) or common law
o S.50(7): w/ a warrant
o Common law  both subjective and objective test
 Officer has reasonable suspicion that person committed an offence
 Scope and purpose of search is truly incidental to arrest
 Search is necessary for investigation of suspected offence, or
for protection of safety of nearby persons
 Officer has reasonable belief that one of the purpose for valid search
will be served
 Not reasonable or practicable to obtain a warrant
- Officer may conduct phone search w/o warrant under common law, but no obligation
to provide password (Sham Wing Kan)

Whether Alex is obliged to provide the password

- No, but police has a division which can search through phone contents w/o password
provided from arrestee

Sham wing kan: not obliged to provide password due to right to privacy

4
√ Q3 – Whether it is likely that his case will be transferred to the District Court
(Topic 3)

s.4(3) DDO Drug trafficking is indictable offence (life imprisonment), or summary offence (3
years imprisonment)

Usual sentencing for 30g cocaine = 6 years  5-8 years for 10-50 grams (lau tak ming;
Abdallah)

Aggravating factors in this case:

- Was found at Macau Ferry Terminal  might be suspected of trafficking drugs to
foreign location and is part of an international syndicate (int’l element)
- Whether D has a criminal record

- Transferal to DC based on seriousness of offence + likely sentence

- Offences listed in Part III, 2nd Sch of MO cannot be transferred

Rules of transferal to DC:

- S.88(1)(a) MO
- S.88(1)(b) MO: mag may refuse transferal of summary offence
- But D cannot object to P’s request to transfer case to DC

If so, whether plea will be taken in MC or DC

- If transferred, plea will be taken in DC

√ What are the procedures for transfer to DC

- Procedure may oral or written request at mention hearing in MC
- On or before date of transfer:
o Prosecution must serve statements of witness they intend to call and
documentary exhibits they intend to produce at trial; and PD 9.4
o Disclose Whether which unused materials exist
- Gov counsel sign application form and order for transfer (s.90 MO)
- Mag appoints a day to remand D or grant him bail + inform D the effect of the
transfer + give D alibi warning

Alibi warning: accused person can only raise alibi evidence if they gave notice to P not less
than 10 days prior to trial

s.89(1) and s.89(2)

√ Can Alex object to commit the case to CFI, since Alex prefers not to have his
case go before the Jury
No right to object

Mag has no right to object for indictable offences

5
Q4 – Procedure on committing case to CFI & Choices Alex can make as part of
the committal process

[Committal process (topic 3)

1. Part III, MO
2. Voluntary Bill of Indictment
a. Only used in exceptional cases, as it deprives D of protections afforded by
committal process
b. Exceptional cases:
i. D alrdy committed for trial in CFI + P wishes to join other counts on
indictment w/o going through indictment process again; or
ii. Some other D alrdy committed + P wishes to join the current D
c. Practice Directions 9.2: Voluntary Bill of Indictment only when there is good
reason to depart from normal procedures and where interests of justice rather
than administrative convenience require it
d. Is an ex parte application, D has no right to be heard
3. s.3&4 of Complex Commercial Crimes Ordinance
4. Committal from DC under s.77A(6)
5. Order for re-trial under s.83E(1) CPO

D can request Preliminary Inquiry]

---------
 Preliminary inquiry vs paper committal route (s.80C(4))

Timing: make this choice before case is committed

Paper committal

If D elects not to have preliminary inquiry, Mag informs D that

- he is not obliged to say anything in respect of the charge but may plead guilty and will
then be committed for sentence on that charge
- if he does not plead guilty, he will be committed for trial on that charge; and
- after committal he has the right to apply once to a Judge for discharge on the grounds
that there is no prima facie case. (CPO, s.16)

if D elects to have PI, at the end of PI, D decides to plead guilty  is D still entitled to 1/3
sentencing discount?
- No, cuz did not PG at the earliest opportunity
- But no case law on this point yet

6
Q5 – Under what circumstances may the case against Alex be discharged in CFI
Discharge after Preliminary Inquiry

Discharge under s.16 CPO

- If D was committed for trial under paper committal route  can apply to judge for
discharge under s.16
- Grounds for applying for discharge:
o Evidence disclosed by P is insufficient to establish a prima facie case
- If is discharged  operates as an acquittal subject to s.81E CPO

s.81E CPO: SJ can appeal against discharge to CA, CA can quash the acquittal (s.81E(3))

PI: discharge is not final

s.16 CPO: operates as an acquittal

Timing for making such an application

By s. 16(1)(b), the Defendant must apply for a s.16 discharge after the filing of the indictment
and prior to his arraignment.

7
 - Criminal Procedure (Applications under s. 16) Rules, Cap. 221G which establish that
the Defendant needs to give notice of his application in the form prescribed in the
Schedule the notice must be signed by the applicant and set out in full the grounds on
which it is argued that no prima facie case is disclosed.
- The notice must also be served on the Registrar of the High Court and/or the SJ not
less than 14 days before the hearing of the s. 16 application
o although by Rule 12, the Judge can waive non-compliance by the applicant
with these rules provided such non-compliance is not wilful

Crim Lit Exercise One (Willy Ma)

(a) Complete a chronological outline, a prosecution analysis chart and a defence analysis
chart

(b) Using the charts, outline the prosecution and defence theories

In chronology:
- Don’t reveal your defence
- Don’t reveal instructions from your client

Some inconsistencies to be highlighted in the chronology:

- Becky said touched ear twice, Client said once
- Whether client remained silent:
o Client: just an accident
o Officer said willy remained silent
- Client said he said sorry after touching ear

D kept smiling (ng Chi Ching)

- Smiling can mean many things, does not have to mean sth indecent
- Wan ho yeung  also talks about smiling

Crim Lit Exercise Two

(assuming ONE Bind Over request rejected by P)
Plea bargaining
Moving forward, writing to P

What documents are missing in Willy Ma’s file:

- Criminal record
- Transcript and disk of interview by police
- 153 notice (since Willy did make an admission)
- WPC police witness statement missing
- Police notebooks

Missing from defence case file:

- Retainer letter
- Attendance notes
- Client instructions – wt clients says wt happens
- Defence research notes

8
Follow-up investigation
- Cctv in the train cabin and at the platform (while D is arrested)
- D’s previous criminal record

Other follow-up steps:

- Ask client whether he will PG or PNG
- Advice regarding venue: prolly MC (cuz if convicted, is short prison sentence)
- Ask client to sign authorization and consents
- Whether client is legally obliged to tell boss  no, not at this timing
o If convicted, has to tell boss cuz he is nurse (nurses registration ordinance) 
may lead to disciplinary matters
- Costs
o Retainer letter, duty lawyer services option

Communication w/ P:
- Write to DOJ on a possible plea bargain
o Get client’s consent (and sign) that he agrees to brief facts and that he will PG
to common assault
- Ask for the following in the plea bargain:
o Charged w/ a less serious offence (common assault)
o Remove the words ‘You have such beautiful ears! Can I stroke the other one? I
have a thing about ears’

Draft of the letter

- I am instructed by xx solicitors on behalf of Willy ma
- I am writing for your consideration of accepting a guilty plea to common assault
- How to support that common assault is appropriate:
o Just one stroke
o Occupation: ENT nurse, works w/ ears all the time
o Didn’t run away
o Clear record – never been in trouble with the law
o No evidence to suggest that this incident was pre-planned
o No injury
o The act itself is not inherently indecent, Ear is not a private part of the body
 S.17 nurses registration ordinance (consequence of if client is
convicted)

Court may have to give good character directions (but D is entitled to good character
evidence)