LECTURE 9, COSTS AND APPEALS: CLASS ACTIVITIES

Problem 2
(i)
Statement that in big trouble amounts to threat?
Ibrahim principles. Consequence inadmissible as
involuntary.
If voluntary - Breach of Rule 6 of R&D? R6 is a rule of
evidence. Statement of a co-Accused is only evidence
against him, not against Accused.
Could only show it to him, not tell him he was in big
trouble or ask if he would like to change his mind.
Was he cautioned? Rules 3 and 6 need more
information.
Consequence R&D for guidance may render
confession inadmissible in exercise of residual discretion.
Tip: remember we dont talk about residual discretion
unless the statement is voluntary. If it is involuntary, it is
inadmissible.

(ii)
Joinder (i) facts relating to separate offences must be
sufficiently connected, (ii) joinder is in interests of justice
and (iii) Ds consent is desirable. Need contemporaneous
concerted action.
See R v. Cheng Kan [1998] 1 HKLRD 914.
Apply law to facts D1 and D2? Tried separately as no
evidence to suggest contemporaneous concerted action.

Only share the same employer not sufficient. D3 and D4

prosecutions case is acted together and confirmed by
confession so reasonable to try together.
(iii)
Theft indictable offence triable summarily (as not
excluded by 2nd Schedule, Part 1 MO) Max sentence is 10
years imprisonment.
Up to Prosecution depends on stage reached in inquiries
and decision as to venue.
(a) Adjournment
(b) Plea taken venue is MC max of 2 years
(c) Transfer to DC. s. 88 MO Magistrate has no
discretion to refuse to transfer except s. 88(1)(b). Sentence
of more than 2 years, less than 7. Application in writing
Transfer Papers (Order and charge sheet) given to
Magistrate. s. 90 MO Magistrate will appoint day to
appear in DC, deal with bail, inform of right to Legal Aid
and give alibi warning (must give particulars of alibi not
less than 10 days before trial date). Plea is taken in DC.
(d) Committal to HC Prosecution would apply for a
return day. s.80A MO. Return Day is 42 days from day on
which Return Day appointed. D can elect either paper
committal or preliminary inquiry. If preliminary inquiry,
date fixed for inquiry, witnesses may be called. If no
preliminary inquiry, D is committed for trial. Once there if
only paper committal s. 16 CPO can apply for
discharge on grounds no prima facie case. If PG on return
day, committed to CFI for sentencing.
(e) withdrawal of charges need leave of court. D will
object can come back again if get more evidence

(f) offer no evidence acquittal. D will prefer this option.

(iv)

General rule can only be cross-examined on previous

conviction in certain circumstances but s. 54(1)(f) may
lose shield against cross-examination.
Depends on nature of defence/whether put own character
in issue: Chan Hing Chi.
D4s confession is not admissible against D3. If D3s
confession is ruled inadmissible is there any other
evidence? If not, advise not to give evidence.
NB previous conviction is for an offence of dishonesty
so may be damaging in eyes of jury if case ends up in CFI
whereas J in DC will understand only goes to credibility
not propensity.

(v)
Explain positive and continuing duty of disclosure to disclose
relevant, material information that may either advance Ds
case or undermine Ps case. Broad definition of materiality:
R v. Keane
Unused material. See Prosecution Code para 12. 3
Prosecution should disclose material (including witness
statements) known to the Prosecution which may assist the
defence.
BUT??? What are the contents of the statements? Are they
relevant? Covered by legal professional privilege/public
interest immunity? We do not know!!! Ask for information.

Problem 3 ADVISE A
May be able to appeal/review against conviction and sentence.
Two possible avenues review under s. 104 M.O or appeal
under s. 113 MO. Discuss procedural steps in more detail once
analysed grounds of appeal.
Appeal Against Conviction
(1)

Material Irregularity in Cross-Examining on Previous

Conviction

S 54(1)(f) CPO shield may be lost in certain

circumstances puts own character in issue, impugns
character of prosecution witness
Even if shield lost, Prosecutor should seek courts leave
before cross-examining on previous convictions as a
matter of good practice
Apply law to facts was cross-examined on previous
conviction. Need more information as to why was leave
sought? Did D lose shield? What was nature of her
defence? Did she put her own character in issue? Review
trial transcript.
Strength of ground? Potentially good depending on further
information
(2)

Error of law in failing to consider that previous

conviction only went to credibility not propensity.

Need more information

Magistrate should have indicated that he understood the
difference and took it into account.

Potentially good ground depending on further information

(3)

Negligence of previous solicitor advice regarding

previous conviction
Needs to be flagrant incompetence. Chan Hing Chi
What advice was given?
NOTE: WAS IT YOU???? If so advise to instruct new
Counsel and solicitors.
More information needed.

(4)

Bias of Judge

Repeated interruptions by Judge and insulting comments.

Chan Hing Chi needs to be many interruptions of a
prejudicial nature. Rarely enough as a ground of appeal by
itself.
Need more information how bad were interruptions? Ask
to see trial transcript.
May only be a weak ground further review once see
transcript.
Apply to Admit Fresh Evidence
REMEMBER TEST CREDIBILITY OF ALIBI EVIDENCE
FIRST BEFORE YOU APPLY TO ADMIT INTERVIEW
ALIBI!!!!
S. 83V CPO? Applicable in MO? See s. 118(b) MO same
principles apply.
Likely to be credible?
Would have been admissible below

 Reasonable explanation for failure to adduce wasnt

available at trial. Only recently returned to HK.
Procedure Notice of Motion (need leave), Affidavit from
witness detailing what they will say, set out why evidence not
called at trial, serve on Respondent not less than 4 days
before appeal.
Appeal Against Sentence
Wrong in principle? A is 19 so s. 109A CPO applies were
reasonable alternatives to custodial sentence probation and
CSO. NB theft is not an excepted offence (Schedule 3,
CPO)
Manifestly excessive? 8 months appears so (but no
information on value of perfume presumably not more than
$500). Young offender, only 1 previous conviction (note: how
much was she fined previously?)
Conclusion good ground of appeal.
Procedural Steps
s. 104 MO review: apply within 14 days. Advantage is cheaper
than appeal. Not a good idea where arguing magistrate not
impartial.
s. 113 MO appeal to CFI 14 days to appeal from date of
conviction/sentence. Preferable option.
Bail Pending Appeal s119 M.O.
No longer presumption of entitlement to bail post conviction.

2 grounds:
Appeal not likely to be heard before substantial part of
sentence served. This is likely here.
Merits of appeal: - more information needed but new
evidence, potentially good grounds of appeal against
conviction, strong grounds of appeal against sentence. Must
show appeal has substantial merits.
Conclusion? Good chance of bail pending appeal.
Appeals - Question 5
Appeal against conviction
1.

Failure to give proper Turnbull direction

Identification was in issue. D raised mistaken ID defence.
Where outcome turns wholly/largely on ID evidence, J
should give a Turnbull warning.
J failed to give a proper Turnbull direction. Special need for
caution. General weaknesses of identification (honest witness
can be mistaken.) Specific weaknesses.
Specifically Vs fleeting glance, V hit on head twice and
lost consciousness, waiter across road and robber had fled by
time he arrived on scene. What was the distance between
waiter and attack? Did their identification match description
of D? Six months between offence and trial may have
affected recollection
Analysis material irregularity, conviction is unsafe and
unsatisfactory - strong ground of appeal.

2.

Improper Dock Identification

Dock ID by 2 witness. Permissible? R v. Hoang Duc Hua
(first time dock ID is not usually permissible)
Did they know D beforehand? Unlikely but need to find out.
Was it possible to hold an ID parade? Did D refuse to
consent?
Was an ID parade held? If so what was result? If not why
not? Were any alternative methods of identification e.g.
confrontation used?
Even if dock ID permissible (unlikely), J failed to warn of
dangers
Need more information but looks like a good ground of
appeal.

3.

Incompetence of Counsel
Prosecution had a duty to point out to J the errors in his
direction failed to do so.
Defence no duty to but in clients best interests.
Fact Defence Counsel failed to take point at trial CA may
conclude that no prejudice suffered Chan Hing Chi.
Weak ground of appeal need to show flagrant
incompetence.

4.

Confession
Ruled inadmissible so D wouldnt want to appeal but
Prosecution may appeal wrong decision of law on R&D
having force of law in which case D should cross-appeal
error regarding involuntariness.

 If so cross-appeal on basis threat about grandparents rendered

confession involuntary. Need more information. Who said
this? What exactly did they say? When? Circumstances of
grandparents old? Ill?
Appeal against Sentence
Tariff set out in Mo Kwong Sang 5 years for armed robbery.
Violence merits an upwards increase. MKS 7 years if
violence used. No previous convictions but this is a serious
offence so lack of conviction record will have little/no
impact.
20 years old does s. 109A apply? Robbery is an excepted
offence (see Schedule 3, CPO.)
Any other mitigating factors? Need more information but
unlikely to greatly impact sentence.
No grounds to appeal sentence not manifestly excessive.
Warning CA can increase sentence (s.83I CPO) or order
loss of time (s.83W, CPO) for unmeritorious appeals.
CONCLUSION???
Good grounds of appeal on failure to give a Turnbull warning
and improper dock ID. Incompetence of counsel is a weak
ground but may succeed in combination with other grounds.
Should not appeal sentence.
Procedure to appeal?
Appeal is to the CA within 28 days from date of
conviction/sentence s. 82 and 83 CPO.
File initial grounds in Notice of Appeal and then perfected
grounds settled by counsel.

 Leave is required for appeals on questions of fact or mixed

law/fact. Here grounds of appeal are questions of law so no
leave is required.
Can Prosecution appeal Costs ruling?
General rule convicted D is liable for costs (s. 12 CCCO).
Costs dont follow event. Prosecution have burden to prove
case. D is entitled to defend.
Testing P case shouldnt necessarily lead to a costs order.
Must be special circumstances which put the Prosecution to
extra expense Chan Kwok Wah.
P can appeal but nothing to indicate special circumstances. D
had good points to make on ID evidence.
Ps appeal would be unlikely to succeed.
Question 6
Appeal against Conviction
1.

Failure to hold a voir dire on admissibility of oral

confession
Fundamental principle that confessions must be voluntary
before admitted into evidence. Involuntary if obtained by
threats, promises, oppression or fraudulent
misrepresentation. Ibrahim
Thongjai double barreled allegation where D denies
making confession but at the same time alleges conduct
which if true could render confession involuntary J
should hold a VD.
J ruled no need to hold VD as D denied he had made it.

 Here D alleged PC 12345 punched him at the scene and

in the van and threatened would be framed if didnt
provide information. Violence and threat J should have
held a VD.
Material irregularity very good ground of appeal
2.

Wrong decision on admissibility of oral confession

Punching amounts to violence sufficient to render oral
confession involuntary. Also threat to frame him sufficient
to render confession involuntary.
Wrong decision of law very good ground of appeal.
Even if ruled to be voluntary, J can still exercise residual
discretion to exclude where use at trial would be unfair
or substantial breaches of R&D. Here seems failure to
caution as early as should breach of R2. Fung Wing
Ching suggests should have cautioned as soon as D said
These drugs are mine. But n.b. this breach alone not
sufficient to rule inadmissible. Court in FWC just applied
proviso.

3.

Wrong decision on admissibility of written confession

J held a VD but ruling that video was conclusive was in
error. Video is not conclusive evidence that voluntary as
irregularities can happen before interview or off camera.
- Can argue that her conclusion on what she saw
was wrong
- She should have found video tell the whole
story. She hasnt know that the court
- She is wrong to find the video is conclusive that
this is a voluntary confession. Oppressive nature

4.

of the police officer who eat him up. Fit in the

later context
- PC12345 was the interview officer
- Breach of directions and rules: medication,
refreshmentgood ground of appeal
- Two separate sets of admission in the question
- Has to be dealt with separately
Need to decide whether effect of violence/threat used on D
has dissipated by the time of the video. Length of time
between two? Interviewed by PC 12345 and D states
signed it as afraid of him because of what had happened
earlier.
Likely written confession involuntary due to subsistence
of threat of violence. Another possibility D denied flu
medication could amount to oppression. Fact doctor later
confirmed he should have it supports this.
If voluntary, J should have exercised RD to exclude for
breaches of R&D breach of direction 4 reasonable
arrangements for comfort and refreshment. N.B rare to
exercise RD to exclude.
Very good ground of appeal.
Failure to disclose material evidence

Prosecution has a positive, continuing duty to disclose

relevant and material evidence. Broad test of materiality in
R v. Keane relevant or possibly relevant, train of inquiry
etc.
Post conviction discovered PC 12345 being investigated
for fabricating evidence in another case. Relevant and
material as D made similar allegations about the same
officer in this case. Tang Ka Kit.

- The fact that it is relevant is that it involve the

sae officer
Irrelevant Ds counsel did not request this information
no duty to do so.
Material irregularity and conviction unsafe and
unsatisfactory very good ground of appeal.
Seek to have new evidence admitted on appeal under s.
83V CPO.
5.

Improper cross-examination on previous conviction

Section 54(1)(f) CPO can only be cross-examined on
previous convictions where (1) put own character in issue;
(2) impugn character of Prosecution witness or (3) give
evidence against a co-Accused.
Here need more information. Why was shield lost? How
was allegation of framing put? Did this cause loss of
shield? Even if shield was lost did Prosecutor ask for leave
before XXN?
Need more information but if improper XXN could have
been damaging in eyes of jury as for offence of dishonesty.
Potentially good ground of appeal.

6.

Incompetence of Counsel
Failed to object to ruling that no need to inquire into
voluntariness of oral admission. No positive duty on
Defence counsel to take points but should act in clients
best interests. Chan Hing Chi need flagrant
incompetence (difficult to show). Fact didnt take point at
trial may show no prejudice suffered.
What advice was given re loss of shield and testifying?

 Weaker ground of appeal.

Procedural Steps:
See answer to question 5
- Apply to CA within 28 days (CPO s82,83)
- Sentence sometimes come out from an
conviction
- Sentence appeal always request leave from the
CA
******************************************************