Criminal Law and Procedure Assignment

Criminal Law and Procedure Assignment

1) At the Trial of Scissors Lee, the prosecution would like to produce to the court the caution statements of Scissors Lee as evidence of his confession. Can you write out a list of your objections you will raise with the court to the production of the caution statement at the trial?

Ans: Upon the production of the caution statement of Scissors Lee, I would like to raise some objections in term of its arresting procedure, reliability and voluntariness.

Arresting Procedure: PC34567 should have cautioned Scissors Lee at the football ground According to the Rules and Direction for the Questioning of Suspects and the Taking of Statements issued by the Secretary for Security in 1992, when PC34567 has evidence that Scissors Lee might have committed an offence, he must caution Scissor Lee before putting him into further questions. In the caution statement, DPC13579 first quoted the conversation between Scissors Lee and PC34567 to induce Scissor Lee to have a consensus in the fact described in that conversation, however that conversation record was not obtained under caution and therefore it should not be mentioned in questioning Scissors Lee. Therefore, the caution statement is not obtained in a proper procedure and should be inadmissible.

Arresting Procedure: DPC13579 did not tell Scissors Lee his rights fully under arrest After Scissors Lee was brought to the police station, he was not told by the police that he should have the chance to contact his family or get a lawyer. In that circumstance, Scissors Lee may be put in a situation of helpless and unassisted. Besides, DPC13579 told Scissors Lee that he could only go if he had given him a statement, therefore, there is a reasonable doubt that Scissors Lee may be induced to cooperate to work out the caution statement. If he was told that he may get a lawyer to represent him, he should have stayed silence during the interview of DPC13579.

Reliability: The caution statement is recorded in English The interview should be conducted in the mother tongue of Scissors Lee, that seems not to be English but Cantonese, upon the conversation between Lee and PC34567 to avoid any ambiguity and misunderstanding. Scissors Lee is only a Form 4 student at a secondary school and do not do well in academic. Therefore, there is a reasonable doubt that Scissors Lee has the proficiency in English that he understood all the statements made by DPC13579 and stated concisely in his speaking about the whole story of the event.

Voluntariness: The length of the time of the interview is too long The duration of the interview is 2 hours. It may be a factor that sapping the free will of Scissors Lee in signing the cautioned statement. When the interview time is lengthened, Scissors Lee was anxious to go home, and there is a reasonable possibility that Scissors Lee just signed the cautioned statement for letting DPC13579 to release him to go home, therefore the cautioned statement may not be made voluntarily and thus should be inadmissible.

Voluntariness: Scissors Lee was in hunger but was rejected to take snack Throughout the interview, Scissors Lee was not given any refreshment. The interview was held at the time of having dinner (2000-2200), as he was quite hungry during the interview, he asked DPC13579 for some snack, however DPC13579 ignored him. In such circumstances, it is reasonable to object that the voluntariness of Scissors Lee to sign the cautioned statement was greatly affected by hunger and ignorance of DPC13579, thus the cautioned statement should be inadmissible.

Voluntariness: Scissors Lee was deceived in signing the cautioned statement DPC13579 showed the cautioned statement to Scissors Lee, and simply asked him to sign on it without explaining the content. Scissors Lee thought the cautioned statement was a paper stating his right after his arrest and signed on it without full acknowledgement. There is a reasonable possibility that Scissors Lee was deceived into signing the cautioned statement and therefore, he was not voluntary in admitting hitting Ah Ho, therefore the cautioned statement should be void and thus inadmissible.

Voluntariness: Scissors Lee was afraid of prejudice in admitting the offence Scissors Lee was told by DPC13579 that he was the only one arrested by the police and he must admit hitting Ah Ho otherwise the police would be very angry and come to his school to see him every day. Scissors Lee was afraid that if he did not admit the offence, the police would really come to see him every day which will obviously cause unexpected harassment to him. Therefore, the cautioned statement is clearly involuntary as it has been obtained by “a fear of prejudice”.

Voluntariness: Scissors Lee was promised in admitting the offence Scissors Lee was told by DPC13579 that hitting is a common assault and he would get away with a fine. Since Scissors Lee thought that he already has a criminal conviction of bound-over and so that one more common assault would not further taint his character. DPC13579 had made an offer of release from police custody and therefore, it is obvious that Scissors Lee signed the cautioned statement in the hope of release, thus that statement is inadmissible.

Voluntariness: Scissors Lee was unsuitable for confession upon his emotional status Throughout the interview, Scissors Lee was scared and anxious to go home. Under this mental condition, he was easily affected by external factors, such as the persuasion or threat by DPC13579, impatient to go home; therefore, it appears a reasonable doubt that he admitted the offence in absolute voluntary. As a result, the cautioned statement should not be admissible as it is not fair to demand Scissors Lee to make a comprehensive decision in the interview.

Voluntariness: Scissors Lee may be affected by alcohol On the day in question, before PC34567 brought him back to police station, Scissors Lee was forced to drink whisky. It was hard to determine that whether the decision of Scissors Lee was affected by the alcohol. Therefore, there is a reasonable doubt that Scissors Lee signed the cautioned statement in an unconscious status, thus the cautioned statement may not be made in voluntary and so inadmissible.

2) Supposed Scissors Lee would plead guilty at his trial, can you advise him what mitigating factors you should address the court on his behalf?

Ans: After having a detailed analysis in Scissors Lee’s background and the circumstance of the offence, I may address the court some mitigating factors upon the facts of this case and of his background.

Case Fact: Scissors Lee was scared of offending Mr. Big Mr. Big was an older boy who started to offer Scissors Lee drinks and snacks and treated him to bar after the match. He taught Scissors Lee how to drink and everybody in the football ground treated Mr. Big like their leader. In this case, Scissors Lee’s offence was instigated by Mr. Big. Mr. Big told Scissors Lee to be at the football ground at 3.30 pm so that he would like Scissors Lee to “teach Ah Ho a lesson.” Mr. Big continued to threaten Scissors Lee that if he did not come, Mr. Big would treat him naughty and teach him a real nasty lesson. Scissors Lee committed the offence only in fear of Mr. Big but not intentional.

Case Fact: Scissors Lee was not the prime mover In this case, Mr. Big was throughout the only prime mover of the offence. Scissors Lee was only in control of Mr. Big because of fear of Mr. Big. He played a less important role than his accomplices in this offence and therefore he should be held less guilty. Without the threat by Mr. Big, there appears no evidence that Scissors Lee would commit the offence and cause any harm to Ah Ho, therefore, Scissors Lee was only a puppet of Mr. Big for his offence to Ah Ho.

Case Fact: Scissors Lee attempted to stop others hitting Ah Ho When Ah Egg, Zero, Ah Kin were hitting Ah Ho, Scissors Lee went up and shouted to them to stop. His attempt to stop others hitting Ah Ho shows that, at first, he had no intention of hitting Ah Ho. Scissors Lee only pushed Ah Ho once after Mr. Big yelled at him, the purpose of his offence was only to make a false appearance to Mr. Big that he was hitting Ah Ho but not intended to cause bodily damage to Ah Ho. In such circumstances, his offence was relatively unsubstantial when compared to his accomplices.

Case Fact: Scissors Lee was affected by alcohol which was forced to drink by Mr. Big Scissors Lee never like drinking wine. But before the offence, Scissors Lee was forced by Mr. Big to drink a lot of whisky. His offence may be affected by alcohol. Therefore, in such unconscious status, Scissors Lee was partly involuntary to commit the offence. There was no evidence that Scissors Lee will commit similar offence in the future.

Case Fact: The injury of Ah Ho was not too serious Ah Ho was sent to the hospital for medical treatment, from his medical report, he was discharged with no complication from his wound and he would be expected to recover fully within two weeks. Although Scissors Lee and his accomplices did damage to Ah Ho, there was no evidence that the offence of Scissors Lee was causing any substantial damage and left any unrecoverable wound to Ah Ho. The offence committed by Scissors Lee was relatively light and it can be seen that the intention of Scissors Lee was not to cause serious harm to Ah Ho.

Case Fact: Scissors Lee did not attempt to approach Ah Ho after the offence Scissors Lee has not tried to harass Ah Ho after the event and he stays a distance from Ah Ho, even if they are still in the same class. Scissors had shown genuine remorse for his offence and regret to what he had done to Ah Ho. Base on these circumstances, Scissors Lee is less likely to recommit any offence to Ah Ho.

Case Fact: Scissors Lee pleaded guilty in sincere manner and cooperated with the police Scissors Lee was regret for his offence to Ah Ho, and he pleaded guilty in sincere manner. Throughout the arrest, Scissors Lee cooperated with the police and told the fact without any concealment. From the above evidence, we can see that Scissors Lee has the intention to repent and reform, he is less likely to commit any similar offence in the future. Therefore, the court should sentence him in high discretion.

Background: Scissors Lee has good relationship with people surrounded From the background report of Scissors Lee, he came to Hong Kong 10 years ago to reunite with his father. However, his father since divorced his mother 8 years ago and left them. Scissors Lee is although come from a complicated family background his relationship with his mother is good. At school, he always has good relationship with school friends, class teacher and the principal. Scissors Lee has good personality and there is no substantial risk of reoffending.

Background: Scissors Lee is a person of responsibility Scissors Lee is an active participator at school and he always help the school in important events like open-day, parents-day and whenever Justices of Peace come to visit them. It shows that Scissors Lee has a good character and a good work record at the school. Besides, Scissors Lee is also the sports captain of his school. He is responsible for organizing sport events and taking care of other schoolmates during sport events. All of his achievements at school show that, he is a person of responsibility and therefore he chose to bear the consequence of his offence.

Background: Scissors Lee has a clear direction of future career Scissors Lee planned to be a footballer, a dancer or an artist after he has finished Form 5. He has a realistic prospect of career and therefore is outstanding from others of the same age. It shows that he is a mature and thoughtful youngster and therefore the criminal conviction of this minor offence would be a stain in his personality which may substantially affect his career and life in future already.

Background: Scissors Lee was not really familiar with the prime mover Mr. Big Scissors Lee was not really familiar with the prime mover Mr. Big and his accomplices, Zero, Ah Kin and Egg. They are only met at the football ground and play football together. After this event, Scissors Lee is much likely to aloof from those people and he will no longer be influenced by these bad friends.

Background: Although he was in bind-over, that offence was not relevant to this case Although Scissors Lee has a criminal conviction of fighting in public place on 5 Jan 2009 and he is under bound-over in $1000 for 12 months to be of good behavior and refrain from acts of violence. However, that offence was obviously provoked by the victims and it is not relevant to this case as in this case, Scissors Lee was in threat of Mr. Big. Therefore, the court should not impose any relationship from this record to the present case.

Proposed Sentence Since Scissors Lee’s mother who earns only about $8,000 a month is the only financial support in his family, and the maintenance from his divorced father is always received on an irregular basis, to impose a fine may not be suitable as it may cause financial problem to his family. Therefore, a community service order should be imposed as Scissors Lee (1) is one with a light criminal record, (2) has a stable home background and good relationship with his mother, (3) has a good record in school important events, (4) has a realistic prospect of being a footballer, a dancer or an artist, (5) has shown genuine remorse upon his confession and (6) has no more than a slight risk of re-offending upon his background and facts in this case.

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