Problem Answers on Criminal Procedure and Evidence Law

Published: 2020-07-16 04:30:04
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( I )

In the regulations of condemnable process, a suspected individual has no duty to reply any inquiries because the load of cogent evidence of a condemnable instance is at the prosecution side. Therefore Herman can exert his right of silence which is protected under the Article 11 ( 2 ) ( g ) of the Hong Kong Bill of Rights Ordinance ( Cap. 383 ) and decline to reply any inquiry raised by any police officer.
However, if it is the truth that Herman was in Macau from 9Thursdayto 15ThursdaySeptember and therefore it can proof that he was non able to perpetrate force battle in Mongkok on 10ThursdaySeptember, I should rede him to state this fact with good and reasonable account to the constabulary for his best involvement. However, before he stating this fact to the constabulary, the constabulary must admonish him before that his reply to the inquiries of the constabulary must be voluntary.

( two )

The intents of the designation parade ( ID ) are to prove the quality of grounds and avoid misguided individuality. If the informant can place a suspected individual, it will be the most of import grounds.
Under Article 87 of the Hong Kong Basic Law and in the instanceR V Ip Lai Sheung [ 1988 ], a suspect does non hold no duty to take portion in the designation parade arranged by the constabulary and the tribunal shall non do an illation of guilt from the fact that the suspect refused to take portion, hence Herman can object the ID.
If Herman is willing to take part the ID, it should be conducted by senior constabularies officer. During the ID, he will be arranged to line up with 7 to 8 individuals with similar visual aspect, construct, tallness, frock to Herman and the informant or victim will take any place in line. To be just to the suspect ( Herman ) , no exposure should be shown to the informant or victim and the legal representative of Herman can go to and can raise expostulation on the processs during the process. After the ID, the record will be kept by the constabulary. If the victim can take one of the batting order and province he or she is the condemnable, it will go a positive Idaho.
Even Herman can reject the process, the constabulary may follow other methods. For illustration, direct confrontation, exposure or dock designation, depends on the nature of the instance and the determination of the constabulary.
Compared with ID and those alternate methods, Herman may necessitate to subscribe out and those processs may go much unjust, less protected and less dependable. Besides, if it is the fact that he was non in Hong Kong during the clip of the force, there should be low opportunity for the informant or victim to place him. Therefore, Herman should be advised to take portion in the ID.

( three )

If Herman is non given a constabulary bond, I will rede him to use the tribunal bond under subdivision 9 ( vitamin D ) and 9 ( g ) Criminal Procedure Ordinance ( Cap. 221 ) ( CPO ) at the clip of first visual aspect in magistrate tribunal. The qualified right to the tribunal bond are under Article 5 ( 3 ) and 28 Hong Kong Bill of Rights Ordinance ( BORO ) .
Under subdivision 9 ( vitamin D ) CPO, the suspect can acknowledge to bail at any clip and the tribunal may object the bond merely justified on three particular evidences under subdivision 9 ( g ) ( 1 ) CPO: the first 1 is abscond, the 2nd 1 is the fishy commit an offense whilst on the bond and the 3rd is that the suspect may interfere or the prevent the class of public justness.
Under subdivision 9 ( g ) ( 2 ) CPO, when the tribunal will chiefly see the likeliness of absconding of the suspect when there is an application of the bond. Besides, they will see the nature and earnestness of offense and likely punishment, the behavior and behavior of the suspect, the background of the suspects, wellness, physical and mental status and age of the suspects, the history of the suspect and the character of the suspect.
Herman may use for a conditional tribunal bond as he has no history of bolting and has a clear record, he works and lives with his household members in Hong Kong that shows he has a strong connexion with Hong Kong and he denies the offense and shall dispute the grounds as he has proves that he was non non in Hong Kong during the clip of offense.

( four )

If Herman pleads non guilty in magistrate’s tribunal, the undermentioned test processs will be made.
The tribunal will get down the supplication taken from Herman, so the prosecution side will give the gap address and the prosecution will give grounds of the offense by naming informants, bring forthing paperss and exhibits and examine in head. Then Herman will hold the cross scrutiny to the grounds and the prosecution will give the re-examination and the prosecution will shut the test.
Herman can subject of no instance to reply (R V Galbraith [ 1982 ]) if Herman thinks that or the prosecution side gives no grounds or weal grounds was discredited during the test. If the tribunal accept the entry, the instance will be thrown out. However, if the tribunal reject the entry, there is a leading facie instance to reply for Herman. Herman can either take to give the grounds or name informants or else he can exert the right of silence. If Herman select to give grounds or call informants, Herman side will hold the scrutiny in head and the prosecution side will hold the cross scrutiny and Herman will so hold the re-examination and so instance will be closed. Both the prosecution side and the suspect will eventually give the shutting speech the tribunal will give out the finding of fact.
( B ) ( I )
Under subdivision 3 Juvenile Offenders Ordinance ( Cap. 226 ) , a individual who is under 10 is incapable of perpetrating an offense and he has nodoli incapax(Bruno walters v Lunt [ 1951 ]) . If the suspect is ager between 10 to 14, the prosecution may refute the given ofdoli incapax, but has to turn out beyond sensible uncertainty that the suspect has both actus reus and work forces rea and gain what he was making was earnestly incorrect.
As A is merely 9 old ages old which is non the age scope to refutedoli incapaxand he is non apt for any offense and can raise babyhood as the defense mechanism.
( B ) ( two )
Under subdivision 10 Theft Ordinance, robbery is the combination of force or menace of force and the suspect had used force or puts a individual into fright, that individual need non be the victim in fright. The actus reus of robbery is that the suspect appropriate belongings which is belonging to another by usage of existent or threatened force instantly before or at clip of robbery and the work forces rea of robbery is the suspect had purpose to utilize force and venally intended to take belongings with purpose of lasting want.
In this instance, B and C decided to rob the teller of the supermarket. B pull out the gun and points at the teller and steal money from the supermarket. A sensible individual should believe that his action will the teller in fright at the clip of robbery and therefore his act complies with the actus reus of robbery.
To find B is dishonestly” to take the belongings, there is a two phase trial held inR V Ghosh [ 1982 ]. The first phase is that to analyze the defendant’s act harmonizing to the criterions of a sensible individual and the 2nd phase is to analyze the suspect aware that his behavior would be regarded as dishonest by ordinary individuals. In this instance, B’s behavior is no uncertainty that non a honest behavior to a sensible adult male and he should aware his behavior should be dishonest. Furthermore, B shall take the money which stole from the bank for lasting. From the above of that, B besides has the work forces rea of the robbery. Therefore B should be apt for robbery because he has both the actus reus and mens rea of the offense.
Although C did non hold the actus reus that to do menace to the teller and rob the money, under s89 CPO, he act as an secondary parties who assist B, the principal of the offense, to perpetrate robbery and had a joint endeavor that made an understanding with B before the robbery (R V Powell and Daniels [ 1999 ]) . Besides, there is no uncertainty that C has the work forces rea that he intended to help B to perpetrate robbery. Therefore, C is besides apt to the robbery.
To reason, both B and C are apt for robbery.
( B ) ( three )
In this instance, it was clear that no joint program to kill the security guard ( X ) as B and C ran in opposite way and hence merely B involved the violent death of X. In condemnable jurisprudence, there are two types of offense on improper violent death which are slaying and manslaughter.
To perpetrate an improper violent death, there must be established a causing for the improper act of the suspect in jurisprudence and on the facts by the but for trial. In this instance, although the decease of Ten was he banged his caput against the paving and, the chief cause of the decease of Ten is because B shoot to X by the gun which is an improper act in jurisprudence. Although Ten was found to hold an abnormally thin skull afterward, here are no alibi for B to raise under the Thin Skull Rule therefore there is a legal causing established between the decease of X and the act of B, so the violent death of Ten by B is improper.
To turn out B commit slaying, besides the defendant’s act was an improper violent death, it must besides turn out that B has the purpose to kill X. InR V Woollin [ 1998 ], the tribunal held that the jury can pull the decision that the suspect has an purpose to kill the victim or non. In this instance, X was killed entirely because X pursuit B after the robbery and there are no proves that B had programs or purpose to kill X, there are no work forces rea for the slaying and therefore B was non committed slaying.
Although B will non be charged with slaying, he may be charged with manslaughter. The footing of an nonvoluntary manslaughter is the violent death is an improper violent death, besides the violent death is by gross carelessness from breach of responsibility of attention, by an improper and unsafe act or by foolhardiness.
The violent death of Ten by B is an improper violent death as proved before, therefore the cardinal issue is to find the act of B to X is improper and unsafe act which is an nonsubjective criterion. The elements are that suspect has done an improper act deliberately and the act is unsafe to do decease. A sober and sensible adult male should cognize that shoot person by a gun will do a hazard of physical injury and may even do decease, hence B’s act complies with an unsafe act.
Since B has commit an improper violent death with an improper and unsafe act but no work forces rea to slay, hence B is apt to manslaughter.

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