Evidence Flashcards.pdf

1. Introduction & Key Concept s 1.1 Introduction: What is Evidence? Evidence : Material which tends to prove or disputes facts in issue. 1.1.1 Why Do We Have Evidence Law? (1) Historical contingency, based on the evolution of common law (2) Because having the wo...

1. Introduction & Key Concept s 1.1 Introduction: What is Evidence? Evidence : Material which tends to prove or disputes facts in issue. 1.1.1 Why Do We Have Evidence Law? (1) Historical contingency, based on the evolution of common law (2) Because having the work of the court divided between two decision - makers allows for the implementation of careful controls on what facts are and aren’t appropriate to consider (3) Because we trust, but don’t entirely trust juries (4) Because the adversarial system inclines both parties to fight all out, so the controls are necessary 1.1.2 What does Evidence Law Do? Evidence law determines (1) The facts that are legally receivable/admiss ible to prove the facts in issue (2) The manner in which evidence must be adduced (3) The evidence that may lawfully be withheld (4) The rules that should be taken into account in assessing the weight of the evidence (5) The standard of proof that shou ld be satisfied, in a given case, before a party bearing the burden of proof can succeed (Andra le Roux - Kemp, Hong Kong Law of Evidence) The work of the courts are divided between judges and juries - Judges decide on the question of law - Juries decide on t he question of fact R v Mirza (2004), “The risk that those chosen as jurors may be prejudiced in various ways is, and always has been, inherent in trial by jury. Indeed, only the most foolish would deny that judges too may be prejudiced, whether, for exam ple, in favour of a pretty woman or a handsome man, or against one whose dress, general demeanour or life - style offends. The legal system does not ignore these risks: indeed it constantly guards against them. It works, however, on the basis that … when cal led upon to exercise judgment in the special circumstances of a trial, in general, jurors can and do set their prejudices aside and act impartially. The recognised starting - point is, therefore, that all the individual members of a jury are presumed to be i mpartial until there is proof to the contrary.” ­ Starting point is that the jury is impartial ­ To argue that juries are prejudiced is to ignore the fact that judges can also be prejudicial ­ Evidence law helps limit prejudice 1.1.3 Types of Evidence Testimony ­ Common law has always insisted that witnesses should give testimony ­ Rationale – Cross examination Documentary Evidence - R v Dayes (1908) , “any written document capable of being evidence.” - Evidence Ordinance (Cap 8) – Guidelines for admissibilit y Real Evidence - E.g., a murder weapon. Purpose is to allow court to examine it Demonstrative Evidence - Where the witness demonstrates are illustrates a fact (e.g., acting it out) - Disadvantage – doesn’t create a written record – hard to overturn on appeal Viewing Evidence - Evidence obtained through visiting and viewing relevant place. - Step only taken if it will provide considerable assistance - Generally done with counsel but CA in Queen v Leung Chun Pui (1987) held it was not improper for judges to visit alone without counse l 1.2 Key Concepts 1.2.1 Relevant Evidence Definition of “relevant evidence” – DPP v Kilbourne, Lord Simon “It is sufficient to say … that relevant evidence, i.e. logically probative of disprobative evidence is evidence which makes the matter which requ ires proof more or less probable” General Principle : Any item admitted must be relevant to a fact in issue - The relevance may be strong or weak – what is required is that it is relevant to the issue in dispute - Fact in Issue : a fact that must be proved ­ Civil cases: facts established by the claimant to establish the claim ­ Criminal case: prosecution needs to establish all elements of the offen ce - Collateral Facts : a fact that is more tangentially related to a fact in issue - Evidence can have a tendency to prove a fact in two ways : ­ (1) Directly (known as direct evidence); and ­ (2) Circumstantially by a single inference or a chain of inferences (known as circumstantial evidence) - The burden of proof is on the party asserting that the evidence is relevant Probative Value – a quantification of relevance: how useful is the evidence in making a consequential fact more or less probable? 1.2.2 Admissibility General Principle : all relevant evidence is admissible on the basis that this will lead to appropriate decision - making. “Evidence is admissible if it may be lawfully adduced at trial” (DPP v Kilbourne) The starting point is that all releva nt evidence is admissible - However, some relevant evidence can be excluded - Because some evidence could lead to jurors becoming misled → rules developed to prevent this 1.2.2(a) Exclusionary Rules If evidence is inadmissible, it is excluded from considera tion. The fact - finder must ignore the inadmissible evidence, even if it is relevant to a fact in issue. Exclusion of evidence is justified by a number of policy considerations: - The right to a fair trial - The law’s refusal to condone bad practices in obtai ning evidence (though not all evidence obtained unlawfully will be excluded) 1.2.2(b) Voir Dire Hearings Whether evidence is admissible is determined by Voir Dire Hearings (French for “to speak/tell the truth”). - Judge, in the absence of jury, hears argum ents from counsel as to whether evidence is admissible - Rationale → Lay people may be unable to remove information from their minds, but judges are trained to prevent bad information from decision - making - R v Lee Chung Tin (1986) : The trial judge determine s what is fair and relevant - R v Kwan Wai - hung (1973 - 1976) : A judge doesn’t need to give reason for the decision at the void dire. 1.2.2(c) Remoteness Sometimes evidence is ruled inadmissible even though it has some relevance, if it risks detracting attention from the central issue in the trial. 1.2.2(d) Residual Discretion to Exclude In addition to the rules requiring the exclusion of certain forms of evidence, the judge maintains a residual discretion to exclude evidence where they deem t he probative value of the evidence is outweighed by its potential to lead to unfair prejudice, confusion, misleading of the jury, or a waste of time 1.3 Evaluating Evidence Once evidence is admitted, it is generally for the trier of fact to weight it “T he assessment of credit is not exclusively a logical process. Juries invariably are directed to use their ‘knowledge of human nature’ when deciding whether a witness is telling the truth, and the law not only permits but requires them to form their subject ive though collective view, taking such account of demeanour, motive, consistency and other characteristics of the person they have seen giving evidence as they think fit. In this broad sense, certain matters can be described as ‘relevant credit’, but this is something different from relevance meaning logically probative of an issue.” In many circumstances, the judge should instruct the jury on how to weigh the evidence. However, there may be circumstances where relevant evidence ought not to be left to t he jury without an accompany judicial warning. - R v Grant (1996) – E.g., evidence that the defendant was found with a quantity of money in his possession would be relevant to his guilt of the offence of possession of drugs with an intent to supply them. Ho wever, “where such evidence [is] admitted it [is] incumbent upon the judge to give a direction to the jury as to the way in which they should approach the question of whether the finding of the money is probative of the necessary intent … [I]t is necessar y … for the judge to indicate that any explanation for the money which has been put forward by way of an innocent explanation by the accused would have to be rejected by the jury before they could regard the finding of the money as relevant to the offence. Again the jury should be directed that if there was any possibility of the money being in the accused’s possession for reasons other than drug dealing, then the evidence would not be probative. If, on the other hand, the jury were to come to the conclusio n that the presence of the money indicated not merely past dealing, but an ongoing dealing in drugs, then finding the money, together with the drugs in question, would be a matter which the jury could take into account in considering whether the necessary intent had been proved” HKSAR v Chu Pak Cheong (2006) Facts - D was convicted on two counts of unlawful trafficking - D’s cross - examination involved extensive questioning regarding D’s allegedly extravagant lifestyle - In his summing up, the judge noted D’s limited known sources of income, and pointed out that the P by highlighting that the D’s limited income could not support his lifestyle was suggesting that the D was not being entirely honest Held - The Court of Appeal suggested this evidence was not re levant however – the lifestyle evidence was from prior to January 2005, when the drug trafficking in question was alleged - “The prejudice is obvious: the jury were being invited to infer past acts of unlawful trafficking in dangerous drugs and to consider t hem relevant to the issues they had to decide” - Conviction quashed and new trial scheduled An appropriate instruction “Of itself it does not prove anything against the defendant and certainly not that he unlawfully trafficked in dangerous drugs. But there a re circumstances in which you may take this evidence into account when deciding whether he unlawfully trafficked in dangerous drugs as alleged in counts 1 and 2. Before you can take this evidence into account you would have to be sure of a number of facts: 1. That the defendant was living to a standard much higher than might be expected in all the circumstances of the case; 2. That you can safely reject the explanation given by the defendant that his lifestyle at the time of the alleged acts of unlawful trafficking and shortly thereafter had nothing to do with his unlawful trafficking of dangerous drugs; 3. That there is no realis tic possibility that the defendant’s lifestyle can be explained other than that he was unlawfully trafficking in dangerous drugs as alleged in the two counts on the indictment.” 2 . Burden/Standard of Proof 2.1 Burden of Proof “ Burden of Proof ” refers to the party responsible for calling evidence and to prove to the satisfaction of the tribunal the truthfulness of that assertion – “ Law of Evidence in Hong Kong ” - There are two types of burdens: legal burden and evidential burden - Normally, legal and evid ential burden rests on the same party. 2.1.1 Legal Burden “ Legal Burden ” (or “persuasive burden”) refers to the responsibility which a party is responsible to persuade the tribunal of fact at the end of the case that its stance is true - In short, legal b urden deals with who must present evidence to prove facts in issue The party who has the burden presents evidence first - Civil Trials – Plaintif f has burden because it is the plainti f f who is making the assertion that the defendant is liable (for breach of contract, tort, etc.) - Criminal Trials – Prosecution has burden Standard governing legal burden in Hong Kong - The legal burden in a criminal trial is governed by the presumption of innocence. The legal burden normally rests on the prosecution, an d is proof beyond a reasonable doubt. - Basic Law, Art. 87: “In criminal or civil proceedings in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained. Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs.” - HK Bill of Rights Ordinance, Art. 11(1): “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” 2.1.2 Evidential Burden Evidential Burden (sometimes referred to as “the duty of passing the judge”) refers to the responsibility that a party has to call su f ficient evidence for the other side to answer to the proposition which the evidence purports to support. - In other words: on an issue of fault, for example, it is for the judge to determine whether fault can legitimately be inferred, before the jury det ermines whether it ought to be inferred (Metropolitan Railway v. Jackson (1877) 3 App Cas 193 (HL) at 200) - That means, if the party that bears the evidential burden on that issue fails to meet it, the judge will withhold the issue from the jury (see, e.g., Alexander v. Arts Council of Wales [2001] 1 WLR 1840 (CA)) ­ If party fails to do it, judge can withhold the issue entirely ­ Note that these things happen in different points in time. 2.2 Standard of Proof “The function of a standard of proof is to ‘ instruct the fact - finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication ’ … The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.” ~ Addington v. Texas, 441 U.S. 418, 423 (1979), quoting In re Winship, 397 U.S. 358, 370 (1970) 2.2.1 Standard of Proof in Criminal Cases The standard of proof which the prosecution mus t achieve is always ‘ beyond all reasonable doubt ’ - Miller v Minister of Pensions (1947) “Proof beyond a reasonable doubt does not mean proof beyond the shadow of doubt … If the evidence is so strong … as to leave only a remote possibility in [the defendant’ s] favour, which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’, the case is proved, but nothing short of that will suffice” - Mancini v DPP (1942) – an extended directions may be called where the jury asks for f urther guidance. In such case, the jury may be told, “A reasonable doubt is that quality and kind of doubt which, when you are dealing with matters of importance in your own affairs, you allow to influence you one way or the other”: Walters v The Queen (1969) - R v Kritz (1950) – defined as ‘sure’ or ‘satisfi ed so that they feel sure’ If there is a legal burden on the defendant , the standard is always ‘on the balance of probabilities’ - Recognised that 'beyond reasonable doubt' would be too much so the standard is always 'on the balance of probabilities' - If the issue is whether the defendant was insane at the time of the crime, the defendant must prove that, on the balance of probabiliti es - Similarly, when an exception to liability is provided by statute, the standard of proof for the defendant is on the balance of probabilities 2.2.2 Standard of Proof in Civil trials In civil cases, the standard of proof is ‘on the balance of probabilit ies’ . - Miller v Minister of Pensions (1947) “If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged; but if the probabilities are equal, it is not” - In other words, needs to be 51/49 in favour of a p roposition to satisfy the standard; 50/50 is not enough — if that is the balance, the party on whom the burden is placed loses - The meaning of ‘balance of probabilities’ is the same in civil and criminal cases 2.2.3 Third Standard of Proof? Situation 1 – Wh ere it is technically a civil case, but one party would consider hard allegations against the other which are criminal - Bater v Bater (1951) – the quantum of the proof should vary with the seriousness of the subject matter - R v H (Minors) (1996) – where all egations of a criminal character may be made, the standard of proof remains on a balance of probabilities, although the graver the allegations, the clearer must be the proof. - Wong Hon Sun v HKSAR (CFA, FACC 1/2009) – “the commensurate evidence approach” – evidence needed to prove a serious allegation on a balance of probability must be commensurate with the seriousness of the allegation Situation 2 – Where case lies between civil and criminal - Re Bramblevale Ltd (1970) – proof beyond reasonable doubt may be required in a civil action. Here, the case involved contempt of court, a “quasi - criminal” offence which can lead to imprisonment. - Ex parte Khawaja (1984) – Immigration detention proceedings. The court called for the use of “civil standard flexibly applied.” - R v Hampshire County Council, ex parte Ellerton (1985) – Disciplinary offences need only be proved on the civil standard, despite the regulations speaking of ‘offences’, ‘the accused’, ‘charges’, and ‘punishments ’. - Solicitor (24/07) v Law Society of Hong Kong (2008) – Followed R v Hampshire County Council. Disciplinary offence – but if you see the language, it is associated with a criminal offence than an employment offence. 2.3 Reverse Onus Exception Normally legal and evidential burdens rest on the same party. However, sometimes the legal and evidential burdens are on different parties. For example: - If the accused claims self - defence, she has an evidential burden to point to some evidence supporting that claim - The legal burden remains on the prosecution to prove the facts in issue for the crime, however – as well as to disprove self0defence, once the defendant has brought the issue into consideration Woolmington v DPP (1935) Facts - Woolmington was c onvicted of the murder of his wife by shooting. He claimed the gun had been fired accidentally - The trial judge and the Court of Appeal had held that the defence of proving lack of mens rea was on him Held - The House of Lords allowed the appeal and stated that at common law in criminal proceedings the burden of proving, beyond reasonable doubt, the actus reus and the mens rea is on the prosecution - The only two exceptions to the rule were the defence of insan ity of insanity and statutory provisions. - “Throughout the web of English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt … No matter what the charge or where the trial, the principl e that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.” 2.3.1 Insanity R v M’Naghten (1843) Ratio In order to establish an insanity defence, it must be clearly proven that at the time of the act, the accused was under such a defect of reason from disease of the mind that he did not know the nature and quality of the act he was committing; or if he did know, he did not know what he was doing was wrong. Facts - Defendant was charged with the murder of Edward Drummond, secretary to the Prime Minister, Sir Robert Peel. Defendant mistook Drummond for Peel and shot Drummond by mistake. - At the time of his arrest, he told police that he came to London to murder the Prime Minister because “the Tories in my city follow and persecute me wherever I go, and have destroyed my peace of mind. They do everything in their power to harass and persecute me; in fact they wish to murder me.” - Defence counsel introduced expert and lay witnesses who testified about Defendant’s obsession with delusions and that he suffered from acute insanity. - The judge gave the jury an instruction regarding his lack of understanding upon commission of the act in question. - The jury reached a verdict of not guilty by reason of insanity. - Following the trial, there was a meeting at the House of Lords attended by fifteen judges in order to determine the standards for the insanity defence. Issue What is the proper instruction for the jury in a case where the insanity defence is used? Held - Lord Chief Justice Tindal delivered the opinion for the House of Lords. Juro rs should be instructed that every man is presumed sane and to possess a sufficient degree of reason to be responsible for his crimes. - Therefore, in order to establish an insanity defence, it must be clearly proven that at the time of the act, the accused was under such a defect of reason from disease of the mind that he did not know the nature and quality of the act he was committing; or if he did know, he did not know what he was doing was wrong. - “the jurors ought to be told in all cases that every man i s presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the grounds of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason … as to not know the nature and quality of the act he was doing” 2.3.2 Express Statutory Exception: Diminished Responsibility On occasion, the legal burden of pro ving a particular exculpatory issue is placed expressly on the defendant by statute. Such statutory provisions state expressly that it is for the defendant to prove or show the matter in question. Homicide Ordinance (Cap 339) 3 1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury ) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. 2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be con victed of murder. 3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter … 2.3.3 Implied Statutory Exceptions Where there is a qualification, exception or proviso in the statute where courts have understood the burden is on the defendant. Criminal Procedure Ordinance (Cap 221) 94A Negative Averments 1) It shall not be necessary in an indictment, charge, complaint or information alleging an of f ence to negative any exception or exemption from or qualification to the operation of the law creating the o f fence. 2) For the avoidance of doubt it is hereby declared that in criminal proceedings – a) it is not necessary for the prosecution to negative by evidence any matter to which this subsection applies; and b) the burden of proving the same lies on the person seeking to avail himself thereof 3) This section applies to criminal proceedings in the District Court or a magistr ates’ court. 4) The matters to which subsection (2) applies are any licence, permit, certificate, authorisation, permission, lawful or reasonable authority, purpose, cause or excuse, exception, exemption, qualification or other similar matter. ⭑ HKSAR v Lam Kwong Wai Ratio If the negative averment interferes with the presumption of innocence – the proportionality test will be applied It laid out a test for when derogation might apply: “ a reverse onus of proof may be justified if it has a rational connection with the pursuit of a legitimate aim and if it is no more than necessary for the achievement of that aim ” Facts The defendants were found in possession of an imitation firearm. They denied prior statements to police and argued that the gun had been bought to play war games. Law - Firearms and Ammunition Ordinance (Cap 238) § 20(1): “Subject to sub - sections (2) and (3), any person who is in possession of an imitation firearm commits an of f ence” Express - "satisfied" - prove to them according to relevant standards - Key here was § 20(3): “A person shall not commit an of f ence under sub - section (1) if he satisfies the magistrate that … (c) he was not in possession of the imitation firearms for a purpose dangerous to the public peace, or of committing an of f ence” ­ Express – “satisfied” – prove to them according to relevant standard Held The Court of Appeal ruled that § 20 placed an undue burden on the defendants and invalidated the statute The Court of Final Appeal found that the presumption of innocence is a fundamental right, but not an absolute right, and therefore is susceptible to derogation - It laid ou t a test for when derogation might apply: “ a reverse onus of proof may be justified if it has a rational connection with the pursuit of a legitimate aim and if it is no more than necessary for the achievement of that aim ” ­ Section 20 had a legitimate aim – to prevent and suppress the use of imitation firearms for dangerous purposes ­ The grounds for the reversal must be “compelling” – simply stating a “pressing social need” is insufficient ­ Here, the court found the need for a reverse onus of proof was not com pelling ­ Defendants were unfairly called upon to disprove their moral blameworthiness ­ Remedy: the reverse onus of proof was to be “read down,” to an evidential burden only ⭑ HKSAR v Hung Chan Wan (2006) Ratio The court ruled, for the reverse burden to be sustained, it must be: (i) convincingly and compellingly connected to a legitimate aim; and (ii) proportionate Facts - D argued that this is violating presumption of innocence Law - Dangerous Drugs Ordinance (Cap 134) § 47: Presumption of possession and knowledge of dangerous drug (1) Any person who is proved to have had in his physical possession - (a) anything containing or supporting a dangerous drug; (b) the keys of any baggage, briefcase, box, case, cupboard, drawer , safe - deposit box, safe or other similar container containing a dangerous drug, shall, until the contrary is proved, be presumed to have had such drug in his possession . - I.e., if the prosecution proves possession of a container of a dangerous drug, it automatically proves: (1) Knowledge of possession of the dangerous drug; and (2) Knowledge of the drug’s nature Held - Because there may be a reasonable doubt as to knowledge of possession or knowledge of the drug’s nature, the CFA finds these presumpti ons clash with the right to a fair trial - The court ruled, for the reverse burden to be sustained, it must be: (i) convincingly and compellingly connected to a legitimate aim; and (ii) proportionate - The court found “ the presumptions were rationally connecte d with the legitimate object of preventing and suppressing the trade and use of dangerous drugs and punishing those who participated in them ,” but also that they were disproportionate, and so read the burden shifting down to an evidential burden only HKSAR v Maria Cornelia Duvenhage (2009) Facts - Judge failed to put standard in Hung Chan Wa into effect Trial judge's reasoning: “ When evaluating the Defendant’s evidence on the issue of knowledge … I reminded myself that the burden of proof rests with the prosecution and the Defendant has no legal burden to prove her innocence. If she can show on the balance of probability that she has no knowledge about the drug found in her physical possession, I have to find her not guilty. ” Held Court of Appeal observed there was “ no obligation on the appellant to show, on a balance of probabilities, that she had no knowledge of the drugs in her suitcase. All that the appellant had to do was to raise in evidence the defence of lack of knowledge (the ‘evide ntial burden’). Once the judge had determined that sufficient evidence had been adduced to constitute an issue fit to be considered by her … it was then for the prosecution to prove that the appellant knew about the drugs in her suitcase. It was not for th e appellant to prove that she did not know of their presence in her luggage .” Factors to be considered in terms of proportionality balancing: ( HKSAR v Cheng Po Yu (2019) ) “As regards the proportionality test, the prosecution bore the burden of providing compelling reasons for justifying that the means employed, the imposition of the reverse persuasive onus was no more than necessary to achieve a legitimate societal aim. Relevant considerations included: (i) the prosecution bore the burden of providing com pelling reasons why a persuasive burden was justified; (ii) the gravamen of the offence; (iii) the existence of a reasonable excuse was something peculiarly within the defendant’s knowledge, yet limited weight may be placed since the facts put forward by a defendant as constituting his excuse could be rebutted and assessed by circumstantial evidence or common sense; and (iv) an evidential burden was not nominal or illusory. It required the defendant to adduce or otherwise be able to rely on evidence which w as sufficiently substantial to raise a reasonable doubt which the prosecution must negative if he was to be convicted.” 1 The seriousness of the penalty applied 2 The seriousness of the harm combatted 3 Access to the relevant information/relative ease in ‘prov ing’ the relevant issue 4 Whether the defendant voluntarily undertook a regulated activity/whether they were ‘on notice’ 5 A holistic consideration of the situation – has the balance as a whole been shifted/does it appear the D might be convicted despite a rea sonable doubt remaining? Tutorial Case: HKSAR v Chan Tat Chung Danny (2010) Facts - The appellant (A) was convicted of one count of attempting to offer advantages to an agent contrary to Sections 9(2)(a) and 12(1) of the Prevention of Bribery Ordinance and Sections 159G and 159J of the Crimes Ordinance - A was offering rebates to Chow in return for securing more business for his company - A was sentenced to 8 months’ imprisonment and appealed against his conviction only Magistrates’ Trial - A caution ed interview was adduced as evidence in trial - The appellant clearly indicated that he knew what he was doing (i.e., offering rebates in return for securing more business for his company) was illegal. - However, the appellant gave testimony in his own defe nce and denied and contradicted his admissions made under caution. - The trial magistrate rejected the appellant's defence and convicted him nonetheless Held Magistrate’s Finding - Burden and standard of proof read down to - defendant has to satisfy the evidential burden that he has the lawful authority or reasonable excuse Precedents Used by Magistrate - Evidential Burden – Paragraph 43 Precedent ‘72. It must be emphasised that an evidential burden is not something nominal or illusory. It requires the defendant to adduce or otherwise be able to rely on evidence which is sufficiently substantial to raise a reasonable doubt which the prosecution must negative if he is to be convicted.” - What led him to that decision? HKSAR v Ng Po - On - What is similar about Ng with the present case? both concerned the same statute - It is a CFA case - Case concerned 14(1) of PBO - Four Stage approach on the reverse onus 28. The court was to ascertain first the meaning of the provision according to common law principles, as supplemented by relevant statutory provisions. The second step was to consider whether the interpretation derogated from the presumption of innocence and the right to a fair trial as protected by the Basic Law and the Bill of Rights. 29. If it did, the c ourt must decide whether that derogation could be justified and, if not, whether it could contravene the Basic Law and the Bill of Rights and whether invalidity could result. If so, it was necessary to decide whether the validity of all or part of the prov ision could be saved by applying any rule of construction, e.g. severing the offending part, reading down, reading in or any other remedial technique available to the court. - Step 1 - the meaning of the provisions according to common law principles and st atutory provisions - Step 2 - Whether the interpretation derogated from the presumption of innocence - Step 3 - Whether the derogation is justified - Step 4 - if yes - whether the validity of the provision could be saved CFI Criticism of Precedent used - Judge is sceptical of approach - case is different from Ng! “71. The respondent argued that the Magistrate was incorrect in following NG and imposing on the appellant an evidential burden, because s 24 POBO and s 94A CPO put the burden of establishing the defenc e on the appellant. The Magistrate was wrong to do so as NG concerned an ancillary offence, whereas a true corruption offence like s 9 POBO justified the imposition of a persuasive burden because of the inherent difficulties in detecting and prosecuting su ch offences. Thus the defence should bear the burden of raising and establishing reasonable excuse or lawful authority, or the specific defence under s 9 (4).” “76… It is an ancillary offence aimed at promoting the effectiveness of the special powers of investigation confirmed by the Ordinance. Prosecution for non - compliance with a notice does not involve proving any insidious arrangement between partners in corruption, but proving non - compliance with a statutory demand for information. Accordingly while I would accept the relevance of the difficulties inherent in investigating and prosecuting corruption offences, they are difficulties which do not bear directly on proving the ancillary offence and cannot be given significant weight when assessing the prop ortionality of the reverse burden in the context of section 14(4)” - Doesn't agree with magistrate - legal burden should be placed on defendant because corruption is more serious so a harsher burden should be placed of defendant “ 76… The insidious nature of corruption offences derives from the fact that corrupt transactions inevitably take place in secret, with the parties likely to be satisfied with their illicit arrangement, each having every incentive to conceal it, making detection, investigation and pros ecution particularly difficult.” 2.3.4 Mens Rea and Reverse Burden of Proof Questions ⭑ Gammon (Hong Kong) v Attorney General of Hong Kong (1985) Facts - The defendants were charged with having materially deviated from an approved plan, creating a risk of injury or damage to others - Removed part of the support system in the interest of safety - Buildings Ordinance, § 40(2)(A): “Any person for whom any building works, street works, lift works or escalator works are being carried out … who – (b) diverges or deviates in any material way from any work shown in a plan approved by the Building Authority under this Ordinance … shall be guilty of an offense and shall be liable … to a fine of $250,000 and to imprisonment for three years.” Held - The magistrate dismissed the charges against the defendants, on the grounds that no mens rea had been shown - "Deviation" doesn't really suggest mens rea - The case was appealed to the Privy Council - The Privy Council reversed the magistrate, finding ‘strict liability’ – i.e. no mens rea requirement – was justified in this case - The decision laid out five principles to consider in determining whether strict liability was appropriate - The statute's goal - public safety was sufficient important to impose strict liability - Despite the fact that the penalty was quite serious - 3 years imprisonment Rule 1) There is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence ; 2) The presumption is particularly strong where the o ffence is “truly criminal” in character; 3) The presumption applies to statutory offence s, and can be displaced only if this is clearly or by necessary implication the effect the statute; 4) The only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; 5) Even where the statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act. Three types of situations: 1) Mens Rea Issue Only : Anyone who annoys their evidence law teacher is guilty of an offense (Note this one is harshest because it gives a defence even though the burden is on the defendant) 2) Traditional Reverse Burden Statutory Defence - Related Issue Only : Anyone who, without reasonable excuse, (intentionally/ knowingly/recklessly) annoys t heir evidence law teacher is guilty of an offence. 3) Both Issue : Anyone who, without reasonable excuse, annoys their evidence law teacher is guilty of an offense. - Where both issues are present, the simplest approach would be to take them in turn: ­ first cons ider whether there should be a mens rea requirement (considering the sorts of issues addressed by Gammon); ­ then consider the statutory defence reverse burden issues - Things get complicated, however, both in that: ­ (i) mens rea and statutory defences can’t always be clearly separated; and ­ (ii) in that courts have a variety of options available on the mens rea question – they can find, relatively simply, mens rea is or isn’t an element of the crime; they can in the alternative find the crime includes a mens rea element, but that there is a burden (either legal or evidential) on the defendant in that regard - Different findings were reached in Hin Lin Yee and Kulemesin ­ Hin Lin Yee concerned a ‘regulatory offense;’ the court accepted strict liability in this cas e ­ Kulemesin concerned a more serious charge; the court considered an evidential burden on the D relative to the mens rea issue appropriate 3 . Calling Witnesses Defendants have the right to give evidence and examine witnesses Bill of Rights Ordinance 11 (2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality — (e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; Witness evidence must be given by a witness sworn to tell the truth Oaths and Declarations Ordinance (Cap 11) 5 1) An oath may be administered and taken in the following form and manner — The person taking the oath shall hold the New Testament, or, in the case of a Jew, the Old Testament, in his uplifted hand, and shall say o r repeat after the officer administering the oath the words “I swear by Almighty God that ”, followed by the words of the oath prescribed by law. 2) The officer shall, unless the person about to take the oath objects thereto, or is physically incapable of so taking the oath, administer the oath in the form and manner aforesaid: Provided that, in the case of a person who is neither a Christian nor a Jew, the oath may be administered in any manner which is appropriate to his religious belief. 3) In this section, officer ( ⼈ 員 ) means a person authorised to administer an oath. 7 1) A person, upon objecting to being sworn, shall be permitted to make his affirmation instead of taking an oath for any purpose for which an oath is required by law In dealing with witnesses – two questions to examine: - Competence – Whether a potential witness is competent to give evidence - Compellability – Whether a witness may be lawfully compelled to give evidence 3.1 Competence General Presumption of Competence : Everyone is presumed to be competent unless the contrary is shown. Exceptions: (1) Limited Companies (2) Young Children (see below) (3) Mentally Incapable Witnesses (see below) (4) Husband and Wife (see below) (5) Defendant for the Prosecution 3.1.1 Exception – Child Witnesses Evidence Ordinance 4 Evidence given by children* 1) In this section, child ( 兒童 ) means a person under 14 years of age . 2) A child’s evidence in criminal proceedings shall be given unsworn and shall be capable of corroborating the evidence, sworn or unsworn, given by any other person. 3) A deposition of a child’s unsworn evidence may be taken for the purposes of criminal proceedings as if that evidence had been given on oath. ⭑ R v Lam Chi Keung (1997) - Default rule is that children are competent, unless the contrary is shown - Given that the child testifies unsworn, moreover, the judge must usually bring home to them the importance of telling the truth ⭑ DPP v M (1977) - The test as to whether a child is c ompetent is a two - fold test : 1) Can they understand the questions put to them? 2) Can they give intelligible answers? (Makes sense to the questions asked) R v Powell (2006) Ratio If the child witness is very young, the judge should do another appraisal to determine if the child is competent. Facts The judge found a 3½ - year - old girl competent to give evidence, and the defendant was convicted. Held The Court of Appeal considered competency should have been considered again after the girl’s test imony, and that in this case, a reappraisal, on the basis that she was “simply not intelligible in the context of the case,” should have been made. Judge did a competency test, but because of the age, they should do another appraisal to determine if the ch ild is competent. However, this did not reverse the judgment. R v B (2010) Ratio See Holding for procedural rules Facts Evidence of a 3 year old child who was raped by the defendant. Held The judge found the witness competent “when simple questions were asked, the defence were able to put their cases sufficiently to ensure that the defendants have a fair trial. Inconsistencies … or matters of credibility and reliability and not competence … the interpretation of those silences … goes to cre dibility and reliability and not competence. The jury observed X with care throughout and are capable, properly directed, of coming to their own conclusions … It may indeed be that this case concerns a child at the edge of competency but, in my judgment, h aving seen and heard her, although inevitably her intelligibility and, therefore, her ability to be understood were at times difficult, X did pass the test of understanding and intelligibility sufficiently for me to say that she is and was a competent witn ess.” (para. 26) The judge instructed/reminded/advised the jury that: - P rocedure adopted was not “intended to pre - judge the evidence” the child would give - The question whether she was “reliable, credible and truthful” had to be decided in exactly the same way as it would with any other witness, based on her testimony “both in the interview and at court” - They should take 5 specific matters which were said to undermine confidence in X’s credibility into account Matters to be taken into account 1) the chil d’s age at the time of the alleged offence, the date of the interview, and her age when she gave evidence; 2) the various gaps in time which might affect her memory; 3) the sequence of events which culminated in her evidence at trial; 4) the need for the jury to make their assessment of whether she was able to understand and be intelligible both in her video interview and her evidence; 5) the way she gave evidence, and in particular whether her evidence about what the appellant had done was spontaneous or simply resp onding to questions which suggested the answers, and whether she agreed with everything suggested to her, or whether she was prepared to ‘stick to her guns and disagree’ when she thought the question was wrong The judge also asked the jury to consider the way in which X had given evidence, making appropriate allowances for her age: “The interpretation of those silences has been placed in question. Was it or may it have been a silence because she was being stubborn, because she was simply refusi ng to answer, or because she knew what had happened but could not bring herself to repeat before others something which upset her? Was she silent because she had no answer to the question, having been caught out in a fib, or was it or may it have been beca use she did not understand? Was it or may it have been because the language concepts failed her? Those are matters for your consideration and on which you should come to your own conclusions without speculating.” The judge also reminding the jury of the criticisms directed by the defence at the way in which the ABE interview had been conducted. R v Lam Chi Keung (1997) Facts - Concerned allegations of indecent assault by a neighbour on a girl aged 12 - A videotaped interview by social workers was accepted as the evidence - in - chief of the girl; at the trial, after a showing of the video, she gave evidence by live television link - At cross - examination, D’s counsel demonstrated her testimony varied The magistrate convicted the D, finding the girl’s test imony credible Issue D appealed, on the basis that the magistrate had failed to determine if the girl was competent to give evidence, that he had not properly brought home to her the importance of telling the truth, that the approach adopted violated D’s right to a fair trial, and that the magistrate had not given proper regard to inconsistencies in the girl’s evidence Held The first claim was based on the idea that even under the new rules, the magistrate should inquire into competency before admitting evidence; the court rejected this claim, however. - Note: the court was a little vague here - perhaps best to understand them as having determined that the child witness had passed the competency test - I.e., the child must pass the general compete ncy test, but no more - Magistrate didn't do it in a very procedurally clear way, but the appellate court felt that it’s done In response to the second claim, the court observed the magistrate had noted to the witness the importance of her telling the truth, and considered this was enough, observing the judge has discretion in this area - Just telling the witness that the truth is important is enough The court found that the third claim also failed, observing D was still protected by the beyond a reasonable doubt standard Finally, the court considered that the magistrate demonstrated awareness of the inconsistencies – he merely wasn’t persuaded by the m 3.1.2 Exception – “Person of Unsound Mind” Evidence Ordinance 3 Incompetency from immature age or unsoundness of mind The following persons only shall be incompetent to give evidence in any proceedings — (a) (Repealed 70 of 1995 s. 2) (b) persons of unsound mind, who, at the time of their examination, appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly; and no person who is known to be of unsound mind shall be liable to be summoned as a witness without the consent previously obtained of the court or person before whom his attendance is required. The test is the same as children ⭑ DPP v M (1977) - The test as to whether a child is competent is a two - fold test : 1) Can they understand the questions put to them? 2) Can they give intelligible answers? (Makes sense to the questions asked) - In practice very few are excluded on this basis - instead, the preference is to receive their testimony, and allow the opposing party to challenge it - A special warning is necessary where the only available evidence is the uncorroborated evidence of a mentally incapacitated person Witness competency is determined by th e judge, at a voir dire hearing R v Deakin (1994) Facts D was charged with assaulting a woman with Down syndrome Issue Whether the complainant was competent to testify. - In the trial, the judge allowed evidence on the complainant’s competency, from two experts (psychologists), to be heard in the presence of the jury Held The Court of Appeal affirmed such questions must be heard in a voir dire hearing, in the absence of the jury. - The court observed this was because it would be hard for the jury to put what they heard out of their minds, if the judge determined, after hearing from the psychologists, that they weren’t competent - Court still upheld the conviction. 3.2 Compellability Default Position : all competent witnesses are comp ellable. If a compellable witness refuse to give evidence, they may be summoned by the court on contempt charges. Exceptions to the default position : Sovereigns, Banks are not compellable in any proceedings other than those by or against the bank (EO, Section 20(2)), Judges are not compellable witnesses relating to their judicial functions (see Warren v Warren (1997)), Jurors are not compellable about jury discussions Witnesses are immune from civil liability in respect of evidence they give in Court ( Ordinary witnesses). Exception – Experts who negligently give evidence may be liable Once a witness gives evidence, they are exposed to cross examination and, therefore, hostile questioning 3.2.1 Exception – Spouses Old Rule – Evidence Ordinance Section 6 “ Nothing in this Ordinance shall render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband, in any criminal proceedings. ” This general rule is n ow subject to a significant statutory exception via C PO Section 57 - Section 57(1) : The accused’s spouse can give evidence on behalf of the accused, co - accused or give evidence for the prosecution, unless subsection (5) applies. - Section 57(2) : The accused’s spouse is compellable to give evidence on behalf of the accused, subject to subsection (5) - Section 57(3) : Subject to Section 57(6), the accused’s spouse is compellable to give evidence – ­ Section 57(3)(a): For the prosecution, but only in re spect to any specified offence that the accused or co - accused is charged with ­ Section 57(3)(b): For the co - accused, but only in respect to any specified offence the co - accused is charged with - Section 57(4) : “Specified offence” in Section 57(3) refers to t he following: ­ Section 57(4)(a): “i t involves an assault on, or an injury or threat of injury to, the husband or wife of the accused; ” ­ Section 57(4)(b): It involves causing the death of, an assault, on, or an injury or threat of an injury to a child of a f amily who is under 16 years old or is mentally incapacitated ­ Section 57(4)(c): It is a sexual offence alleged to have been committed on a child of a family who is under 16 years old or is mentally incapacitated ­ Section 57(4)(d): “ it consists of attemptin g or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of ” above offences - Section 57(5) : Where the husband and wife are jointly tried, neither spouse is a competent witness for the prosecution - Section 57(6) : S ection 57(5) is inapplicable to either spouse who is no longer liable to be convicted in the trial (whether as a result of pleading guilty or any other reason) - Section 57(7) : The privilege of husband and wife and evidence of access do not apply to the spo use of an accused if they are giving evidence for the prosecution or on behalf of the accused or a co - accused under subsection (2) or (3). - Section 57(8) : The privilege against incrimination of self or spouse in criminal proceedings does not apply to the sp ouse of an accused if they are giving evidence for the prosecution or on behalf of a co - accused under subsection (3). - Section 57(9): A former spouse of an accused can give evidence and is compellable as if they had never been married to the accused, subjec t to subsection (10). - Section 57(10): A former spouse of an accused cannot be compelled to give evidence for the prosecution or on behalf of a co - accused in relation to matters that occurred during their marriage, unless they would be compellable under sub section (3) if they were still married to the accused. - Section 57(11) : The prosecution cannot question or comment on the failure to call the spouse of an accused as a witness. - Note – in civil proceedings, spouses are competent and compellable (Evidence Ord inance, §5) When couples aren’t compellable: 1. Divorced spouses aren’t competent or compellable for matters that occurred during that marriage 2. Where they make an application for exemption under CPO Section 57A(2) Criminal Procedure Ordinance 57A (2) Where an application for an exemption is made to a court under subsection (1) and the court is satisfied — (a) that, if the husband or wife were to give evidence for the prosecution or on behalf of the co - accused, as the case may be, there would be a subst antial risk of — (i) serious harm being caused to the relationship between the husband or wife and the accused; or (ii) serious emotional, psychological or economic consequences for the husband or wife; and (b) that, having regard to the nature and gra vity of the offence charged and the importance at the trial of the evidence that the husband or wife is in a position to give, there is insufficient justification for exposing the husband or wife to that risk, HKSAR v. Lai Tuin Hing [2007] 4 HKLRD 149 Ratio Where the spouse gave material evidence for the prosecution without being informed that she was not compellable, there will be an irregularity Facts - D was charged with murder - D’s spouse, who gave evidence for the prosecution, was not informed by any court, the prosecution or the police that she was not compellable Held - While the Court of Appeal found this was an irregularity, it considered it a non - material one – i.e., not su f ficient grounds on which to reverse - It based this finding both on the fact the evidence “was of no great importance,” and on the fact that “at no stage did [D’s wife] indicate any reluctance to give such evidence” - The Court of Appeals observed the error would have been material if the D had been more seriously prejudiced by the evidence, however 3.2.2 Exception – The Accused The accused is never a competent witness for the prosecution. The accuse has a choice as to whether to testify or not: - The accused is competent, but not compellable for the defendant (Criminal Procedure Ordinance Section 54(1)). Accordingly, the accused is free not to give evidence at all at the trial . ­ I.e., they get to choose whether to take the stand in their own defenc e or not ­ This principle is fundamental in the common law system, based on the presumption of innocence and the right against sel