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The University of Hong Kong Department of Law May Examinations 2018-2019 Examiner’s Report [This report will be posted onto Moodle immediately after the release of exam results] Course code: LLAW2003 / LLAW2004

Course title: Criminal Law I & II

Report prepared by : MJ (with input from part-time markers) Date : 25.6.2019

General Comments: The Final Examination involved problem questions, and assessed both knowledge of criminal law concepts and principles, and also the ability to apply that knowledge to the set problems. In addition to basic requirements (identifying relevant offences, assessing the role (principal / secondary party) of each possible participant, and considering relevant defences), markers looked for evidence of depth of knowledge, and quality of analysis. Better answers confidently identified the relevant offences and issues, elaborated and explored the relevant principles and case law in detail, and clearly linked their analysis to the given facts. Average answers generally demonstrated a competent grasp of the issues and law, and a measure of analytical skill, but were less detailed or less sophisticated in applying their legal framework to the given facts, or omitted discussion of one or more issues. Weaker answers tended to identify only the most obvious issues, and outlined the law in a relatively rudimentary manner, with limited analysis or application to the facts as given. Generally, candidates were able to follow a structured approach in answering the questions, first identifying possible offences and then turning to possible defences. Answers usually identified and elaborated (where necessary) on the AR and MR of relevant offences. Some answers prematurely turned to analysis etc without having clearly or fully identified the relevant basis of liability. AR elements were usually competently dealt with, although some answers failed to recognise possible difficulties in identifying the relevant act or omission (especially in relation to Q.1(a)). For the most part, relevant legal principles were outlined competently, and candidates were generally able to recognise and satisfactorily discuss the central issues raised by each question. Most candidates managed their time well and wrote full answers but, as always, not all did so, with some of those who chose Q.2 as their first answer appearing to spend too much time on that question. 193 candidates attempted the Final Examination. The most commonly attempted question was Q.2 (149 of 193), with Q.3 being attempted by 131 candidates, and Q.1 being attempted by 106 candidates. Specific comments on each question are set out below. In addition, the Marksheets used by the examiners for each question are annexed to this Report. 1

The Overall Grade Distribution this year [based on three items of assessment, ie. Magistrates Court Report (10%), End of First Semester Test (30%), and Final Examination (60%)] is similar to previous years, with both the median and average falling in the B+ range. Details: A+ (0); A (3); A- (28); B+ (84); B (42); B- (17); C+ (9); C (6); C- (2). Others (2). Absent from Final Exam (9). **

Question 1 If you choose to answer this question, you must answer BOTH (a) AND (b). Each answer counts as 50% of the overall grade for Question 1. (a) Archie and his girlfriend Betty were chatting in the backyard of Archie’s country house. Betty had consumed considerable amounts of wine. Betty, who was also smoking, was swinging back and forth on a rubber tire hanging from a tree. Archie noticed that a cigarette butt flicked by Betty had fallen into a pile of old, dry leaves at the base of another, nearby tree, and the leaves had started smoldering. Archie wanted to cut down this tree, which was on his neighbour’s land, because it obscured his view, but his neighbor had refused. ‘Look’, said Archie to Betty, ‘those old leaves seem to be burning. Let’s see if a fire starts. I’ve been meaning to cut down that tree and a fire would save me the trouble.’ Betty, feeling a bit confused, asked, ‘Did I cause that?’ Archie replied, ‘Not sure, maybe it was the sun magnifying off that mirror over there.’ Betty said, ‘Are you sure it’s ok to let the tree catch fire? Is it your tree?’ Archie angrily shouted, ‘Don’t ask any more questions. Let’s see what happens.’ Betty was afraid of Archie, so she said and did nothing. The leaves suddenly burst into flames, causing minor damage to the base of the tree. However, one of the burning leaves blew onto the neighbour’s wooden shed, setting it alight and burning it down. Discuss the possible criminal liability of Archie and Betty.

Comments: Most answers identified arson (ie. criminal damage by fire) as the relevant offence (with some also considering A’s possible liability for threatening Betty), and competently set out the elements. Some failed to expressly identify the relevant criminal act or omission, likely based on a Miller analysis (and many failed to address clearly or fully the need for D to be ‘aware’ he or she had created the relevant danger by his or her own conduct). Some answers did not fully apply or explore the test of recklessness with specific reference to the two items of property damaged (ie. tree and wooden shed) by the fire. Most answers explored various possible ‘defences’ available to A and/or B, including intoxication, duress and ‘lawful excuse’ (as provided for in s.64) in relation to B. Not all answers considered whether A’s liability was as a principal or accessory (or the basis on which A might be liable as an accessory).

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AND (b) Chris and Debbie are husband and wife. A year ago, Chris became seriously ill and lost his job, and Debbie had to spend all her time looking after Chris. During this year, they used up all their savings. A month ago, Debbie was diagnosed as suffering depression, and began taking anti-depressant pills, but used up her initial supply three days ago and lacked money to buy more pills. That same day, Chris said to Debbie, ‘We have no choice, I can’t get a job, you need pills, we need money, let’s rob a convenience store, they always have lots of cash.’ ‘No, no, no,’ said Debbie. Chris said, ‘You’re my wife, do as I say, or I’ll leave you’. Debbie reluctantly agreed, hoping nothing would come of it. But this morning, Chris said, ‘Ok, let’s go, I’ve got some head coverings and scissors.’ Together they set off to a convenience store across town identified by Chris. On the way, Debbie said, ‘I’m feeling very depressed, I can’t do this, I’m not going any further.’ Chris said, ‘Do you want me to beat you up?’ Scared, Debbie followed Chris. When they got to the store, it was closed. Chris angrily struck the door. A passing police officer noticed, came up to Chris, and asked, ‘What are you doing?’ Chris pointed his scissors at the police officer, saying ‘Just let us go’. Throughout, Debbie stood with her hands covering her eyes, moaning ‘No, no, no.’ Discuss the possible criminal liability of Chris and Debbie.

Comments: This question involved discussion of robbery and inchoate liability on the one hand, and then an assault-based offence against a PO acting in due execution of duty on the other. Most answers covered these two broad areas of liability, but some spent relatively limited time on the second. Some scripts failed to recognise that conspiracy (to rob) cannot be charged against a husband and wife acting alone (ie. in the absence of a third co-conspirator). Most candidates focused on attempted robbery, and competently set out the relevant elements, but the corresponding analysis in some answers omitted consideration of relevant issues (eg. the potential implications of D’s depression). Not all answers explored the several possible defences available to D, including marital coercion and duress (including withdrawal).

* Question 2 Paul, Ron, Sam and Tim are former classmates and now gym mates. In the decade after leaving school, they used various ‘recreational’ and dangerous drugs. Paul was the heaviest user, and also occasionally suffered uncontrollable bouts of anger, mostly just causing him to curse and swear, but sometimes leading to physical violence, especially after drinking alcohol. Paul also suffers from paranoia, caused by his 3

long-term drug use, and regularly feels that ‘everyone’, even his friends, actually hate him. Ron, Sam and Tim have all seen Paul ‘lose it’ and have been physically attacked by him. Recently, all four were suspended by their gym due to an ‘anonymous’ report of drug use on the premises. Paul wrongly suspected that Tim made the report, due to his ‘suspicion’ that Tim might actually be a police informant. Paul texted Ron, Sam and Tim, telling them to gather at a waterfront park. He added, in a text to Ron and Sam, ‘I don’t trust Tim and want to test him.’ When they had gathered, Paul told Ron and Sam to help him hold a blanket, which they would use to toss Tim into the air, before doing the same with Ron and Sam, to ‘test your loyalty’. Tim said, ‘Ok, no worries’. When they threw Tim into the air, Paul shouted ‘Let go of the blanket!’, which Ron and Sam willingly did. Tim fell heavily to the ground, breaking two ribs. Ron asked, ‘Are you ok?’ Tim said, ‘I think I’ve broken something. Let me just sit here for a while’. Paul muttered, ‘He needs to suffer more, a lot more.’ Ron and Sam heard Paul. Paul then took out a bottle of baijiu (a strong Chinese liquor) and drank half of it. After a while, during which Ron and Sam smoked some cannabis (marijuana), Paul’s eyes glazed over and he began shaking. Paul then said, ‘Let’s go over to the waterfront.’ Ron and Sam carried Tim, who was in pain, and helped Tim sit on a bench at the waterfront. Sam said, ‘I’ve had enough, leave Tim alone’, and then left. After a few minutes, Paul suddenly pushed Tim off the bench, and kicked and punched him twice on the ground. Ron said nothing, hoping Paul would soon calm down so Ron could help Tim leave. Suddenly Tim said, ‘You’re just a violent bully, no wonder everybody hates you, you’re a madman. I hope you die and go to hell.’ Paul became visibly enraged, and dragged Tim to the edge of the waterfront. Paul then pushed Tim over the edge. Tim fell 2 meters into the sea, but was unable to swim due to his injuries, and drowned. Paul claims to have no memory of events after drinking the baijiu. Discuss the possible criminal liability of Paul, Ron and Sam

Comments: Most candidates attempted this question, which required candidates to explore the possible liability of the parties for murder (or perhaps manslaughter) in relation to P’s killing of Tim, either as principal or as an accessory (applying Jogee, as approved in Chan Kam Shing) or as a party to a joint enterprise (applying Chan Kam Shing). In addition, there was potential liability for the earlier conduct (of throwing T in the air and letting him fall). In addition to the elements of liability, this question presented candidates 4

with many potential defences, including intoxication, provocation, diminished responsibility, and insanity. Some candidates spent too much time either on this question as a whole, or on one or more particular issues (eg. some answers spent a great deal of time discussing P’s liability for initial ABH/GBH to T, when the obvious focus should have been on P’s liability for T’s later death). For the most part, candidates demonstrated good knowledge of the law, and reasonable skill in applying and analysing liability, and structured their answers appropriately. Weaker answers did not adopt a clear flow in identifying the applicable basis of liability of each party (by asking questions such as ‘who are the principal(s) for the non-fatal injuries?’ or ‘what was the homicide act done by P?’). As a result, some answers failed to consider relevant principles such as ‘Dutch courage’ or ‘series of acts’.

Question 3 If you choose to answer this question, answer TWO of (a), (b) or (c). Each answer counts as 50% of the overall grade for Question 3. (a) Eric and Fred were drinking beer together in a bar. Eric was attracted to Gina, who was also drinking in the bar, and several times smiled at Eric. When Gina got up to leave, Eric said to Fred, ‘Let’s go.’ Fred had taken some sleeping pills earlier that day, and was feeling ‘a bit zoned out’ (as he stated later). ‘Just come on’, said Eric, dragging Fred out of the bar. They followed Gina for several blocks, during which time Fred eventually realized they were following Gina. Fred said to Eric, ‘She looks pretty’. ‘Sure does,’ said Eric. When Gina entered a carpark lift lobby, Eric and Fred followed her into the lift. Fred slumped into the corner of the lift, frightening Gina. ‘Sorry about him’, said Eric, ‘he’s had too much to drink’. When Gina exited the lift, Eric pulled Fred up and out of the lift. Once outside, Eric drunkenly let go of Fred, who fell against Gina. Gina screamed. Eric grabbed hold of Gina’s arm, put his other hand over her mouth, and said, ‘Don’t be afraid, I saw you look at me in the bar, I think you like me, I want to be your lover.’ Gina reached into her purse, took out a knife, and stabbed Eric in the chest. Gina is only 15 years old; she says she thought Eric was going to rape her. Fred says he has no memory of events after entering the lift. Discuss the possible criminal liability of Eric, Fred and Gina.

Comments: This question required consideration of indecent assault by E, along with more minor issues of assault/battery by F, and self-defence by G (as a ‘defence’ to a charge of wounding/GBH). Most candidates identified and worked methodically through these offences, including issues of intoxication. Oddly, some answers assumed E was dead, and considered murder in relation to G. Some answers focussed on attempted rape, presumably influenced by G’s claim that she ‘thought’ E was going to rape her, despite likely difficulties in proving either a ‘more than merely preparatory’ act or the relevant MR for rape (including intention to have sexual intercourse then and there). Not all answers considered the possible relevance of O’Grady/Hatton in discussing G’s (likely mistaken) 5

belief that E was going to rape her. Not all candidates considered the relevance of G being only 15 years old, and whether Chow Wai Lun might assist E in this case (based on E believing, possibly reasonably, that G was 16 or older, given she had been in a bar serving alcohol, which meant that those present should be aged 18 years or older!). Not all answers recognised the AR and/or MR difficulties in making F liable for ‘frightening’ G, simply focussing on G’s reaction, rather than F’s state of mind.

or (b) Hilary was visiting Hong Kong on holiday. While attending a museum exhibition, Hilary saw a table laden with fruit, cakes and pastries. Hilary helped herself to a plateful and ate everything. When museum staff presented her with a bill for the afternoon buffet, Hilary said, ‘Sorry, there’s been a mistake, I thought the food was complimentary.’ Jim, the Museum’s Senior Manager was called, and he pointed to a notice stating the buffet price. But Hilary said, ‘I never saw that notice’. Hilary went with Jim to the management office, but after discussing matters further, still refused to pay. When Hilary got up and said she was going to leave, Jim said he was arresting her for theft, locked the door, and said he was going to call the police. Hilary suffers from claustrophobia (ie. fear of confined spaces) and endured several traumatizing ‘locked-up’ incidents during her childhood. CCTV in Jim’s office shows that Hilary suddenly attacked Jim, scratching at his face, and striking him over the head with a stone ashtray, resulting in a skull fracture. Hilary says her memory is a ‘blank’ after she saw Jim lock the door and heard him mention the police. A medical report says it is possible Hilary may have suffered a ‘traumatic blackout’. Discuss the possible criminal liability of Hilary and Jim. [Note: in assessing Jim’s liability, you may use the following definition of ‘false imprisonment’, taken from Archbold HK 2019 [para.20-334] : ‘the unlawful and intentional or reckless restraint of a victim’s freedom of movement from a particular place’]

Comments: This question primarily required candidates to discuss theft and aggravated assault against H (with issues of dishonesty in relation to theft, and H’s mental condition in relation to aggravated assault). It also included a more limited issue relating to J’s potential liability for false imprisonment, with the focus primarily on J’s entitlement to ‘lawfully arrest’ (and detain) H. Generally, this question was well answered. Weaker scripts did not consider whether H’s alleged blackout was caused by external or internal factors, and whether H could only rely on insanity rather than automatism. Better answers included references both to s.3 of the Theft Ordinance, as well as Ghosh (not 6

‘Ghost’ as many candidates still write) and Ivey on the relevant test for ‘dishonesty’ (assuming s.3 is inapplicable).

or (c) Mark and Nick were employees of ‘Sea Park’, a fun park. Both Mark and Nick were employed on the ‘Water Chute’ ride, which carries passengers in a specially designed boat along a gently sloping ‘river’, until the very end, when the boat plunges down a ‘scary’ steep chute to finish. Recently, Mark was fired by Sea Park. Two days ago, his last working day, Mark, who was very angry with Sea Park for firing him, removed a plug (used to drain away any water which may have splashed into the boat during the ride) from one of the boats, when he tied them up in the evening. Mark believed the boat would fill up with water and be discovered in the morning, and ‘just intended to cause a bit of inconvenience.’ But a plastic bag floating in the water tank covered the missing plug, and no water entered the boat overnight. Yesterday morning, Nick, one of whose jobs was to inspect the boats before the ride opened, failed to notice the missing plug. Oscar was a passenger in the boat during its first ride for the day. Nick was distracted at the starting dock by a text message from his girlfriend, and did not notice that Oscar, after first putting on a life jacket, as required, had then removed it before the boat left the dock. During the ride, the boat started filling up with water, and it sank just at the entrance to the steep chute. Oscar, immersed in water without a life jacket and unable to swim, panicked, and tried to climb forward out of the boat. When the following boat bumped into the sunken boat, Oscar slipped, fell down the chute, and broke his neck, dying instantly. Discuss the possible criminal liability of Mark and Nick.

Comments: This question gave candidates the opportunity to explore manslaughter, using either an unlawful and dangerous act analysis, or based on gross negligence. Causation featured in either approach to O’s death. Generally, this question was well answered, although some candidates struggled in relation to the causation issue (ie. whether subsequent acts of either another party (N) or the deceased himself (O) might be regarded as a NAI). Answers using an unlawful and dangerous act analysis (vis-à-vis M) generally recognised that M’s act (in removing plug) likely constituted criminal damage (or attempted criminal damage) (a few candidates even recognised the possibility of M’s act amounting to aggravated criminal damage, although this was unnecessary for analytical purposes). Answers based on ‘gross’ negligence did not always fully or clearly explore whether a ‘serious risk of death’ was evidenced on the given facts, as now stipulated by the case law in order to satisfy the need for ‘gross’ negligence.

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