Criminal Law Notes v23 - crim PDF

Preview

Summary

CRIMINAL LAW I II Bachelor of Laws LLAW 2003 2004 Note to User Take note that v23 does not reflect certain developments, i. Ghosh test overruled Discussion of Jogee impact on joint enterprise doctrine (Chan Kam Shing) Contents (semester 1 exam highlighted) Contents .....................................

Description

CRIMINAL LAW I & II Bachelor of Laws – LLAW 2003 & 2004 Note to User [WY]: Take note that v23 does not reflect certain developments, i.e. - Ghosh test overruled - Discussion of Jogee impact on joint enterprise doctrine (Chan Kam Shing)

Contents (semester 1 exam highlighted) Contents ........................................................................................................................ 1 Course Introduction..................................................................................................... 3

5. Specific Offences .................................................................................................... 32 5.1 Non-Fatal Offences against the Person .......................................................... 34 5.2 Offences Against Property – Theft Offences ................................................. 42 5.3 Offences Against Property – Criminal Damage ............................................ 48 5.4 Homicide Offences – Murder ........................................................................ 52 5.5 Homicide Offences – Manslaughter and Others ............................................ 64 5.6 Sexual Offences ............................................................................................. 73 5.7 Other Offences ............................................................................................... 80 6. General Defences .................................................................................................... 83 6.1 Mistakes ......................................................................................................... 83 6.2 Mental Abnormality: Insanity, Automatism & Denial of Mens Rea ............. 86 6.3 Private & Public Defence............................................................................... 96 6.4 Justificatory Necessity ................................................................................. 100 6.5 Duress .......................................................................................................... 102 6.6 Unfitness to Plead ........................................................................................ 106 1

7. Secondary Liability .............................................................................................. 108 7.1 Assisting at the Commission of Crime ........................................................ 109 7.2 Assisting after the Crime ............................................................................. 124 8. Inchoate Offences ................................................................................................. 126 8.1 Incitement .................................................................................................... 126 8.2 Conspiracy ................................................................................................... 130 8.3 Attempt ........................................................................................................ 134

2

Course Introduction

“Thisfull-year course introduces students to the Criminal Law in Hong Kong. It will examine both the general principles and premises upon which criminal liability is constructed and imposed, and also a range of offences as illustrations of the application of general and particular principles. In the first semester, the course begins with an overview of the criminal justice system, which students will explore further by way of a Magistrates Court exercise. The course then examines the role and significance of constitutional review in relation to the criminal law, with particular emphasis on the presumption of innocence and ‘remedial interpretation’. The course then proceeds to examine the general principles and concepts used by lawyers to construct and understand the nature and operation of criminal liability, with particular emphasis on rules of statutory interpretation as they apply to criminal legislation. The course will explore elements of criminal liability, including objectiveconductelements(or‘actus reus’), and subjectiveculpabilityelements(or‘mens rea’), with attention both on the way in which offences are constructed by statute (and exceptionally at common law), and also the role of the judiciary in interpreting and applying offences. The course will invite students to adopt a critical mind-set towards the criminal law and the judiciary, reflective of the significance of criminal law as a central tool of governments in seeking to establish and maintain law and order. In the second semester, the course will turn to an examination of various general and special defences and other exculpatory factors available in a criminal case. It will then proceed to consider several ways in which criminal liability is extended and imposed beyond the person principally responsible for commission of prohibited conduct: firstly, to those who assist, encourage or procure the principal or otherwise join together with the principal in committing the prohibited conduct; secondly, to those who may be liable by operation of doctrines of vicarious and corporate liability ; and thirdly, to those who incite, conspire at or attempt to bring about the commission of prohibited conduct even though such prohibited conduct may not actually take place.

3

This course aims to provide a solid grounding in the functions and principles of criminal law, to extend and develop students’ skills in statutory interpretation, case reading, research and problem solving, and to encourage a critical and reflective mind-set about criminal law andthecriminaljusticesystem.” (Course Outline, Criminal Law 2013-2014)

Assessment Information  

1st Semester Magistrate Court Report 1st Semester Test

10% 20%



2nd Semester Research Paper

20%



Final Examination

50% A Note on Examination

Examination and tests are open book, meaning you can taker in any materials in hard copy. However, no statutory materials will be provided.

4

1. Introduction 1.1 Orientation of Criminal Law z

Criminal Law does not stand alone, it is also closely related to the criminal

z

justice system Criminal Law is the substantive branch that provides the formal background and

z

legal authorities of the criminal justice system Other branches include: Criminal Procedure and Rules of Evidence as well as Sentencing Rules & Guidelines (when convicted) Quick Note: Is Loitering an offence?

-

Yes and No. Loitering per se is not an offence, but when combined with other elements (e.g., “with intent to commit an arrestable offence”), it may become an offence.

-

To convict, criminal procedures has to be conducted and evidence must be adduced.

z

What generally is a crime?  Technically,a“crime”isreferredtoan“offence”  See, for example, Interpretation and General Clauses Ordinance (Cap 1) stipulatesthat“Offencemustleadtopenalty” 

Sources of Law:  Mainly defined by statutory sources (e.g., Crimes Ordinance, Theft Ordinance) – check for the words “commitsanoffence”or equivalent  There are also common law offences (e.g. Murder, Manslaughter, Outraging Public Decency and Common Assault)  Note, however, even for statutory offences, we must also pay attention to the common law rule of interpretation and case laws alongside with the definitions provided in the statutes.



A basic definition:  A crime is a legal wrong + criminal response + punishment if convicted  Legal Wrong = Deviance from the Law  Criminal Response = A Legal response in criminal procedures  Punishment = Outcome, contrasted to being ordered to “compensate the victim” in Tort Law or “compensate the non-breaching party” in Contract Law 5

z

Constitutionality of Criminal Offences  Sometimes, a “crime” may limit one’s constitutional right (e.g., the challenge (though failed) of freedom of expression as in HKSAR v. Ng Kung 

Siu). If the Court finds a provision unconstitutional, the court may have to adopt a remedial interpretation to avoid declaring the law void.

z

Why is something a Crime? (A Normative Approach)  Harm Theory  Harm to an individual or to the society  Offences of this type include Common Assault, Murder etc.  See, for example, JS Mill’s Harm Principle (mainly embracing physical harm) and Feinberg’sOffence Principle (embracing wider to include other harms like defamation and insulting sppech)  Often, we need to strike a balance between individual liberties and the 

societal interests Immorality  Hart and Devlin Debate in England – should we impose a morality in the society? Should there be a distinction between “crimes” (legal wrongs) and“sins” (moral wrongs)?  Offences of this type include child pornography etc.  The reality is that, most legislation in Hong Kong, is to legislate for a standard of morality.

z

Why Punishment? What are the justifications?  Retributive Theories  Principle: Look at the cause of punishment  Key Ideas: “vengeance”, “just desert”, “an eye for an eye”, or in the moremodernandcivilizedexpression“retribution”  Deficiency: Whynot choose another wayof “retribution”? Whymust someone be thrown into jail when he can offer compensation?

6



Instrumental / Utilitarian Theories  Principle: Looking forward – the effect of punishment. Punishment is only a mean to achieve an end (outcome).  Extended view: Deterrence not only work on the individual (the victim), but it also work with the whole society (e.g., when X is punished severely, then the whole society is deterred)  Key Ideas: “deterrence”,“rehabilitation”  Deficiencies: We can punish anyone severely, even out of the proportion of the offence. Also, if someone cannot rehabilitate for a long time, does it mean that we should stay in jail forever? Punishment Theory & Sentencing

None of the theories are perfect. A combination of theories would be used in sentencing: For example:  

Deterrence – a long sentence to a criminal convicting murder Rehabilitation – non-custodial sentences like Community Service Orders

7

1.2 Key Features of HK Criminal Justice System z

Largely State-Controlled  

z

E.g., HKSAR v. Defendant or ICAC v. Defendant. Also explains Criminal Law as a branch of public law

The Role of Discretion  There is a large role of discretion. Examples include  Witness – To report crime or not  Police – To investigate or not?  Department of Justice – To charge or not?



Other venues of discretion:  Selection of trial location, normally by the prosecution unless certain 

offence stipulated by law that must be tried elsewhere Plea-bargaining – the acceptance of a lighter charge in return of acquitting a higher charge. Note that the judge remains to have the discretion of sentencing (unlike some other jurisdictions which the judgewillbeboundbythe“agreedsentence)

z

Protection of Individuals as a value behind?  Due process of law  

Presumption of innocence Fair trial and legal representation

8

z

What model of system should we adopt?  Crime Control? (e.g. Magistrate Courts with summary procedures) 

Due Process of Law? (e.g. High Court with more complicated procedures



such as voir dire in determining the admissibility of evidence) Victim-rights? (e.g., why should we only emphasize on HKSAR v.



Defendant while the victim is not concerned?) Bureaucratic model? (e.g. the procedures being too complicated such that one cannot access the law easily?)

z

Further special features in Hong Kong  Bilingual Courts + Wide use of Interpreters  Cross border challenges from the mainland 

Unique Jury System  Jury making up of normally seven person  Also note, the jurors are mainly English-speaking people. Hence, the



selectionofjurymaynotbea“fairrepresentation”ofthe society. Diversity of Crimes  Law crime rate generally  Comparatively high concentration of law enforcement



 Prevalent in property and finance crimes  Also see the role of ICAC in combating corruption Human Rights Protection  Hong Kong Basic Law  Hong Kong Bill of Rights Ordinance (Cap. 383)  International Law Provisions

9

1.3 Brief Process of Criminal Trial z

The Case Goes on Trial  The Defence would be given the Prosecution File, which includes:  Charge sheets  Summary of Facts  Witness

Statements

/

Caution

Statements

(Useful

for

cross-examination)  ID Parade Evidence  Criminal Record  Other information (e.g. Unused Materials) 

The Defense Lawyer also comes into play…  Plead guilty - Normally 1/3 discount on sentencing + Further Mitigation  Plead not guilty – Challenge evidence, see if prosecution proves beyond reasonable doubt z Note: The Prosecution bears the burden of proof. There is no need for the client to prove his innocence in court. Even if the client elects to give evidence and his evidence is not believed, the z

court still have to rely on the prosecution to convict the client. Note: Defence lawyer only presents the case of the client. There should not be any coaching of evidence

z

Classification of Offences  Classification of Offences:  Tried summarily only  Tried summarily or by indictment  Tried by indictment only 

How to Classify Offences:  For Statutory Offences, Criminal Procedure Ordinance notes that an offence is summary unless: z Treason z “Uponindictment”or“onindictment”appears z

Transferred to District Court in accordance with the Criminal

Procedure Ordinance  For Common Law offences, they are all indictable.

10

z

Procedures of Court  Summary Procedures: 

 Magistrate court by a summons and using summary procedure Indictable Procedure:  District Court can trial indictable offences (except serious offences like murder)  High Court require a committal hearing (or paper committal) in magistrate court + Indictment + Indictable Procedures + Jury Trial Power of Judges

MAGISTRATE: -

Offence: Summary offence and offence tried on summary or indictment.

-

Maximum penalty: 2 years imprisonment and fine of $100,000 for 1 offence. For more than 1 offences, maximum of 3 years imprisonment consecutively DISTRICT COURT:

-

Offence: Deals with indictable offence.

Maximum penalty: 7 years imprisonment HIGH COURT OF FIRST INSTANCE: -

Offence: Unlimited criminal jurisdiction. Can try any offence.

-

Maximum penalty: Life imprisonment Jury Trials: Juries are the judges of facts and the judge is the judges of law

z

Criminal Trial Procedure In General Terms  Reading of charges + Plead Guilty or Plead Not Guilty 

Prosecution opens its case  Prosecution calls witnesses (PW). Prosecutor is the examiner-in-chief, followed by cross-examination by Defence lawyer. Finally, re-examination by the Prosecutor if necessary.  Prosecution also adduce other exhibits

 

Prosecution closes its case Defence’s“No-Case-to-Answer”Submission

 

 Prosecution can object to the submission Court’sDecisionastoany“casetoanswer” If a case to answer, then Defence opens its case  Defence calls witnesses (DW), Defence lawyer is the examiner-in-chief, followed by cross-examination by Prosecutor. Finally, re-examination by the Defence lawyer if necessary.  Defence also adduce other exhibits



Jury direction (if any) and Ruling. If convicted, mitigation and sentencing 11

z

Appeals  3-tier system, depending on the starting point of trial  Magistrate Æ Court of First Instance Æ Court of Final Appeal  District Court Æ Court of Appeal Æ Court of Final Appeal 

 Court of First Instance Æ Court of Appeal Æ Court of Final Appeal Generally one appeal will be given



Secretary for Justice can also initiate a review of sentence (where the



sentence was considered as manifest lesser than before) Leave to appeal (e.g., permission to appeal) would be required for appeal to the Court of Final Appeal. Only for issues of law of great and general importance.

12

1.4 Statutory Interpretation z

Significance  Giving meaning to the words of the statute:  To ascertain elements (mens reas, actus reus)  To determine burden of proof

z



As prosecution, one may like to push the meaning as far as possible to



convict one As defense, one may like to limit the meaning as far as possible

Steps of Approach

Constitutional Conformity

Basic Cannons

z

Principle of Legality

Strict Construction

Basic Cannons of Interpretation  Literal Rule – Plain meaning  Ordinary Meaning: z  

Issue in Question: Meaning of dishonesty Useof“commonsense”toascertainmeaning

 Always Speaking: z 

The meaning of statutes is “always speaking”, we need to



construe it against the current background The court held that “bodily harm” includes “psychological harm” (when the ordinance enacted, there was nothing as

  

psychological harm) Golden Rule – In ambiguity, give the meaning with most sense. Mischief Rule – In ambiguity, look at the purpose Purposive Approach – In ambiguity or not, look at the purpose  Interpretations and General Clauses Ordinance (Cap. 1): give “fair, largeandliberalconstruction”toordinances  Identify the legislative intent by aids like Law Reform Commission Report, debates in the legislature etc

13

z

Constitutional Conformity 

Constitution Documents  Bill of Rights Ordinance (Cap. 383) & Basic Law  Protect rights that are both substantive (e.g. right to live) as well as 

procedural rights (right to fair trial, presumption of innocence etc) does not conform the constitution, it might be “read down”tocomplywithit( z Note that in remedial interpretation, a court can do what it usually cannot do, e.g., “read down” words (a legal burden turns into

z

evidential burden) or “blue-pencil rule” (to cross out certain words)or“readin”words(addwords) Advantages of remedial interpretation: Can retain the jurisprudence and the ordinance while maintaining constitutional



conformity Leung TC William v. Secretary for Justice  Challenge criminal law discriminatory against homosexuals  Successfully repealed sections of Crimes Ordinance that prohibits homosexual sex activities under 21 (whereas heterosexuals can have



sex over 16) HKSAR v. Mohammed Khan Shamim  Challenged

the

Firearms

and

Ammunition

Ordinance:

The

presumption of “knowing the firearms” is declared to be constitutionally invalid.  Result: Remedial interpretation adopted – the “legal burden” is turnedintoan“evidentialburden” z

Pri...