Pre and Post Trial Criminal Rules and Procedures
a. Annie has not been arrested. Under Hong Kong criminal law, an arrest is deemed to have been made when there is physical contact between police officers and the person arrested, amounting to the restraint of the person for purposes of bringing that person to the police station for detention and questioning. An arrest is also deemed made when words have been uttered by policy authorities with the effect of communicating the intention to restrain the freedom of that person. However, in the case of communicating the intention to arrest, merely uttering the words to make the arrest is not sufficient. It is important that the words uttered and the manner of uttering the words should have the effect of making the person being arrested understand that he/she is being arrested and that he/she should voluntarily submit to the arrest. In either or both instances, restraint pertains to the limitations in the freedom of the arrested individual to go about his normal course of business. The effectiveness of the words used in making the arrest is subject to the determination of the jury.
Nevertheless, based on the facts of the case, Annie has not been arrested because the words used by the police officers do not clearly amount to the expression of the intention to restrain the freedom of Annie. The statements uttered by the police officers could even amount to an invitation to come to the police station for questioning, regarding her meeting with Simon and her receipt of the package, which turned out to contain heroin. Moreover, the person being arrested should be informed of the purpose of the arrest as provided in Christie v Leachinsky [1947][1] but Annie was not informed of the purpose of the arrest, which means that there could not have been an arrest. Informing the person being arrested is not necessary when it appears that the individual already has an idea of the reason for the arrest. Based on the facts, Annie claimed lack of knowledge of the affairs of Simon during the last 5 years or the contents of the package, which means the need for the police officers to inform her of the purpose of the arrest, if the police officers were indeed arresting her. Annie also did not resist or showed any signs of evading the police officers so there was no impractical reason not to inform her of the purpose of the arrest according to R v Howell [1981][2], if she is being arrested.
b. Annie has the right of silence if the police want to question or interview her in relation to the alleged offence. The right of silence has been based on the presumption of innocence in criminal law, which implies that the burden of proving guilt depends on the prosecution and the person suspected or accused of doing the offence does not have the obligation to help the prosecution prove guilt.
Under common law, a person being accused to have committed a crime has the right to exercise silence before accusers. This implies that the right of silence constitutes a limitation on the investigative powers of the police. During investigations, the police do not carry the right to force the accused to answer the questions. R v Director of Serious Fraud Office, ex parte Smith [1992][3] also provides that silence during pre-trial is important for a number of reasons:
1) to provide the accused with a general immunity from the compulsion of treats of punishment to reply to questions posed by investigating authorities so that statements recorded under these circumstances are not acceptable in court;
2) to provide the person being investigated with the general immunity from incriminating himself/herself by answering the questions; and
3) to provide accused individuals with the specific immunity from being forced to answers any questions, which the accused refuses to answer.
The right of silence commences as soon as the there has been an impairment of the freedom of the accused, which in this case is Annie being brought to the police station for questioning regarding the situation when she was seen conversing with Simon and receiving a package from him, when the police has knowledge that Simon has served prison sentence for drug-related crimes in Columbia.
c. A number of factors would likely influence the decision of the Eastern Magistracy to grant bail to Annie. Initially, the issuance of police bail depends on two general factors: 1) the seriousness of the offence to 2) warrant the perception that the individual should not be freed on bail[4]. Drug-related offences constitute serious offences but Annie could be granted bail by establishing justification for the validity of the grant of bail. Moreover, bail can also be granted for indictable offences[5] so that even if Annie is accused of a drug-related offence, she can still be awarded bail subject to certain requirements and considerations.
After determining whether there is reason to consider granting bail, the Eastern Magistracy also has to look at the objectives raised by the prosecution to the granting of bail, such as whether the accused has the propensity to: 1) abscond or flee to another country; 2) commit other crimes while on bail; and 3) interfere with the witnesses or meddle in the proceedings[6]. In the case of Annie, she has a British National Overseas (BNO) passport, which eases the possibility for her to get out of Hong Kong. This could be raised by the prosecution as an objection to the Eastern Magistrate in considering granting her bail.
On the part of the Eastern Magistrate, it will also look into a number of considerations in granting bail apart from the claims of the accused applying for bail and the objections of the prosecution. First consideration is the attitudes and behaviour of the accused[7]. Annie works at a nightclub and she was seen in the company of Simon outside of a bar. Although, this in itself does not determine Annie’s character, this could indicate the propensity of her meeting people involved in crimes or being involved in offences. Second consideration is the family, community, employment and financial background of the accused[8]. Annie earns a monthly income of HK$ 10,000, which is a little more than the average monthly income in Hong Kong. She also lives with her mother in a rented apartment. This means that her salary is just enough to meet their basic needs. Although, this does not necessarily indicate propensity to commit crime upon bail, this could be considered in light of other related circumstances. Third consideration that is relevant to this case is the character of the accused in terms of previous arrests or criminal records as well as behaviour during the previous issuances of bail[9]. Annie has been previously convicted ten times for stealing at shops and having been caught in possession of illegal drugs. Annie’s last conviction was just in the previous year. The Eastern Magistracy could consider her record as indication of her propensity to commit crimes upon release on bail but it could also be considered that her last conviction was a year ago indicating the lack of any illegal dealings since then.
Based on these considerations, the Eastern Magistracy could grant bail, which is a form of conditional release. The conditions for her bail could include non-application of self-recognizance[10], which means that Annie has to find a surety to guaranty that she will comply with all the conditions of her bail. The conditions of her bail could include: 1) she will give to the court her BNO passport or other travel documents she carries; 2) she will not leave or flee Hong Kong; 3) she will report to the police station or other criminal law institutions when required by the court; 4) she will keep her known residence and be there during the period that the court requires; 5) she will refrain from entering premises such as those related to the commission of the crime for which she was accused; 6) she will keep away from places linked to drugs or other crimes; 7) she will refrain from coming into contact with known drug users, dealers or traffickers or other people that could influence her to commit crimes or meddle with the case; and 8) she will deposit the amount required for bail or request the surety to do so in her place[11]. All conditions will be put in writing to be signed by the court authority, the accused and/or the surety.
d. If Annie pleads not guilty to the charges made against her, the outline of the trial procedure would be as follows:
1) prosecution and the defence—Annie and/or her legal representation—appears before the Eastern Magistrate for introduction;
2) arraignment follows with the reading of the charges before asking the defendant to express her plea of guilty or not guilty for the record;
3) upon the plea of not guilty ascertainment of the Magistrate follows by asking the a) prosecution regarding the number of witnesses, the intention of expressing any cautionary statements, language to be used during the trial, and the estimated trial period and the b) defendant whether legal representation has been made and if not to direct the defendant to seek Duty Lawyer Service and warn the defendant that if this is not done or waived, there will be no adjournments to give way to obtain this service;
4) scheduling of the trial hearing and the court follows;
5) determining the grant of Court Bail is the next procedure;
6) during the trial proper, the calling of the case, appearance of defendant, reading of charges, and entering of plea are required so that Annie can change her plea during this time;
7) prosecution first presents its case by giving a brief statement and statement of admissions, calling of witnesses in succession to take their oaths and sit in the witness stand, examining in-chief the witnesses, cross- examination of witnesses by the defence, re-examining of witnesses by the prosecution on matters covered by the cross-examination, and posting of questions and asking of any matters arising by the Magistrate;
8) prosecution closes its case by stating the intention to close its case;
9) defence could make a submission of ‘no case to answer’ to indicate the lack of need to answer since the prosecution has not made its case, followed by the reply by the prosecution, and then by the decision by the court which either affirms the submission leading to the acquittal of the defendant or rejects the submission resulting to the continuation of the trial;
10) defence presents its case next by calling witnesses for oath taking and presentation of testimonies, examining in-chief of witnesses by the defence, cross-examination of witnesses by the prosecution, re-examination by the defence on matters covered by the cross-examination, and posting of questions and asking of matters arising by the Magistrate;
11) defence issues a formal statement to close its case;
12) prosecution and defence make their closing statements in this order, unless the defendant had not legal representation and no other witnesses were presented apart from her person then the prosecution does not make a closing statement;
13) Magistrate considers the case and delivers the verdict in court; and
14) sentencing follows if the defendant has been found to be guilty or discharge follows if the innocence of the defendant has been affirmed.
e. Annie’s sentence of two months imprisonment suspended for 15 months means that her two months imprisonment sentence will not take effect unless she commits an offence punishable by imprisonment within 15 months starting from the date that the order was given[12]. If Annie does not commit any offences punishable by imprisonment within 15 months from the date of order, then her imprisonment sentence will no longer take effect. The court could also impose certain conditions for Annie to comply with during the 15-month period[13]. The period of suspension amounts to the completion of sentence of imprisonment as long as Annie has complied with all the conditions.
Criminal Liability
Mark if liable for Galileo’s death because it was his actions, of hitting Galileo with a wine bottle, which caused the death of Galileo. Based on the facts, it appears that Mark is liable for manslaughter, which is justified by provocation. To justify manslaughter, there should be causation, which is the successive chain of events commencing with the action of the defendant and resulting to the death of the victim, without any substantial intervening factors to break the chain. In this case, the act of Mark of hitting Galileo with a wine bottle has been the catalyzing factor for his death. Mens rea should also be determined to justify manslaughter. Based on the facts, Mark appears to have no original intent of killing Galileo and it was due to the provocation of Galileo that spurred Mark to act as he did.
Criminal law[14] provides that where a person has been provoked either by actions or words, with the effects of making the person lose self-control, then the murder charge could be mitigated by the provocation depending upon the factual determination of the jury. From the facts, Mark is very passionate about her girlfriend Cleopatra, as expressed by his intention to propose to her. However, before being given the chance to propose, Galileo created a scene by making disrespectful remarks about Mark’s girlfriend, causing Mark to become very angry, which explains the force used in hitting Galileo with the bottle.
In determining the extent of provocation arising in the circumstances to support the mitigation of liability, Fong Sum v The Queen [1973][15] provides that the provocation should be serious enough to cause the defendant to lose his mind. The case further provides that the provocation involve three elements: 1) there was actual provocation; 2) there was an actual and total loss of his self-control; and 3) the retaliation is deemed to have been proportionate to the actual provocation. R v Duffy [1949][16] adds that the defendant should have suddenly but temporarily lost self-control to be a state of passion to have rational thinking.
In application to the given case, there was provocation because of the disrespectful remarks made Galileo towards Mark’s girlfriend. The test of reasonableness shows that these remarks would make a man to whose girlfriend the remarks were made very angry. Mark retaliated by taking the closest object he can get and hitting Galileo with the wine bottle. It appears that Mark’s actions were done during that period when he was very angry.
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