VII. Case illustration
There is an endless list of situations relating to possible criminal offences and procedures. The following scenarios are merely examples:
1. I have committed the criminal acts (e.g. stolen a watch, wounded a person or whatever) and I have told my lawyer all the facts. However, I do NOT want to plead guilty to the offence. Will my lawyer still defend me at trial, or only say something in mitigation? Is my lawyer bound to report my offence to the Court after I tell him the truth?
Under the Hong Kong legal system, the burden is on the prosecution to provide satisfactory evidence to the Court to prove that you are guilty of the offence beyond reasonable doubt. Hence, your lawyer may still defend you on the basis that the prosecution cannot satisfy this burden of proof by testing the prosecution’s evidence. However, your lawyer must also follow some professional ethics and he can only run your defence on a limited basis, as he cannot conduct your defence on a basis that is contrary to what you have told him. For example, your lawyer can challenge a prosecution witness’s memory, but he cannot put forward a defence that you were not present at the scene of crime or that it is another person who committed the offence.
While you have the right not to plead guilty and ask your lawyer to continue to defend you, you should consult your lawyer whether it is in your best interest to do so. Given what you have told your lawyer, he can only run your defence on a rather limited basis, and this may affect the chance of a successful defence. If you are convicted by the Court after trial, you will not receive the normal one-third discount on sentencing upon a guilty plea (see Part V Section I of this topic). You should therefore carefully consider whether you wish to plead guilty to the charge and ask your lawyer to mitigate on your behalf.
All information that you have told your lawyer would be kept strictly confidential. Without your consent, your lawyer cannot tell the Court or others that you have committed the criminal acts.
2. I am facing a criminal charge and I have to attend the hearing soon. Can I choose not to give oral evidence in Court? What are the essential things that I need to be aware of if I choose to give evidence?
Under Article 11(2g) of section 8 of the Hong Kong Bill of Rights Ordinance and Article 39 of the Basic Law, you have the right not to be compelled to testify against yourself or to confess guilt – the right to silence. By virtue of that right, you can choose not to give evidence at trial and the judge/jury shall not draw inference against you because you exercise this right.
Whether or not to give evidence is an important decision, about which you should consult with your legal representative and carefully think. As the specifics of each case vary, it is difficult to say in general whether it is advisable to testify and the things to be born in mind when you testify in court.
3. I am just a witness who is going to give evidence in Court. Will I incur criminal liability if I intentionally or carelessly give false statements?
Any person sworn as a witness who makes statements in a judicial proceeding which he knows to be false or does not believe to be true commits the offence of perjury under section 31 of the Crimes Ordinance (Cap. 200of the Laws of Hong Kong). A conviction for perjury is punishable by a fine and an imprisonment up to 7 years.
In case you are not sure about an answer, simply say so.
If you want to know more about the formalities for giving evidence in Court, you can visit the Hong Kong Police webpage.
4. I accidentally knocked down a lady by my car and she subsequently died. Will I be charged with manslaughter or murder or other offences?
If it is an accident and there is no evidence that you have any intention to injure that lady, then you will not be charged with murder or manslaughter. However, if the accident occurred as a result of your serious fault in driving, then you may be charged with dangerous driving causing death under section 36 of the Road Traffic Ordinance (Cap. 374 of the Laws of Hong Kong). A person is considered to be driving dangerously if the way that person drives falls far below what would be expected of a competent and careful driver, and it would be obvious to the competent and careful driver that driving in such a way would be dangerous. It is also dangerous driving where it would be obvious to the competent and careful driver that the motor vehicle's condition was so bad that it would be dangerous to drive such a vehicle. The offence of dangerous driving causing death carries a penalty of a fine (of up to HK$50,000) and imprisonment for up to ten years. Such a driver shall also be disqualified from driving for a period of not less than two years for the first such offence, and not less than three years for any subsequent offences.
If you were only careless at that time, then you may be charged with careless driving under section 38 of the Road Traffic Ordinance. A person is considered to be driving carelessly if that person drives without due care and attention i.e. failing to exercise the degree of care and attention that a reasonable, competent and prudent driver would exercise. A person is also considered to be driving carelessly where that person drives without reasonable consideration for other persons using the road. The offence of careless driving carries a maximum penalty of an imprisonment for 6 months.
5. I have previously claimed that I was a member of a triad society but in fact I was not. I just wanted to threaten someone. Have I committed an offence?
Under section 20(2) of the Societies Ordinance (Cap. 151 of the Laws of Hong Kong), any person who is, acts, professes or claims to be a member of a triad society is guilty of an offence. Hence, you might have committed this offence by claiming to be a member of a triad society even though you are not actually a member. Even an empty threat of belonging to a triad society is an offence. You may also be guilty of criminal intimidation.
6. I have some overdue payments in respect of a bank loan. Recently, I have received many telephone calls from a person claiming to be collecting the payments on behalf of the bank. He used some foul language but did not make any threats to kill me. Would such conduct constitute "criminal intimidation" or some other criminal offence?
Under section 24 of the Crimes Ordinance (Cap. 200), a person commits criminal intimidation if he threatens any other person with either, any injury to the person, reputation or property of that person, or to that of a third person or the reputation or estate of a deceased person, or with any illegal act and such person, with the intention to (1) alarm the person so threatened or any other person; (2) cause the person so threatened or any other person to do any act which he is not legally bound to do; or (3) cause the person so threatened or any other person to omit to do any act which he is legally entitled to do.
Criminal intimidation is therefore not limited to death threats. If the person claiming to collect on behalf of a bank threatens, with the requisite intent, to harm your reputation or property if you do not repay a loan, then his conduct may constitute criminal intimidation.
Notably, there is no requirement that the threat must be made face to face. For example, there is case law where threats made on the telephone were regarded as sufficiently constituting criminal intimidation.
However, the mere use of foul language without any threatening words would not be criminal intimidation.
Alternatively, he may have committed the offence of sending message by telephone which is grossly offensive or is of an indecent, obscene or menacing character under section 20 of the Summary Offences Ordinance (Cap. 228).
7. I am facing a criminal charge and I am having difficulty finding a defence witness. However, I remember that there was a teenager at the scene. That teenager appears to be under the age of 16, but his testimony may prove that I am not the offender. Can I call him as my defence witness in Court?
The law does not prevent young people under the age of 16 to be witnesses in legal proceedings. With reference to section 3 of the Evidence Ordinance (Cap. 8 of the Laws of Hong Kong), only persons of unsound mind and who appear incapable of answering questions about the relevant case shall be incompetent to give evidence in any proceedings.
You can try to ask that teenager to be your defence witness. You may also issue him a witness summons to ensure that he attends court. A witness summons is a document (issued by an order of a court) that compels a witness to attend a trial.
8. I am the victim of a crime. I know that the offender has been convicted and sentenced to prison. Do I have any right to know when the offender will be released from prison? I am afraid that the offender may take revenge on me.
As a victim of the crime, you have a right to ask the Commissioner of Correctional Services (either directly or through the police officer who handles your case) to inform you when the offender will be released from prison. You must however provide the Commissioner your contact address and telephone. If you have proper reason to suspect that the offender may take any revenge on you, you may seek help from the police. If you want to know more about a victim's rights and obligations in a criminal case, please see the Victims of Crime Charter issued by the Department of Justice.