VI. 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?
You have the right to plead NOT guilty even if you have committed the criminal acts. You also have the right to legal representation in that situation. 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 above question and answer). 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. Hence, you should be honest and truthful with your lawyer so that he can give you the proper legal advice.
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, 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 are generally not required to give evidence at trial.
In deciding whether or not to give evidence, your lawyer should advise you of the advantages and disadvantages of giving evidence. In some cases, it may be necessary for you to give evidence or call witnesses, e.g. where you have an "alibi" (evidence showing that you were not at the scene of the crime when the crime happened). On the other hand, if you choose to give evidence, you run the risk that you may weaken your own defence during cross-examination by the prosecution. The prosecution may be able to weaken your credibility if you answer the questions poorly or inconsistently.
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. 200 of 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?
Only using foul language without any threatening words (such as those relating to injury, damage to property or reputation) does not amount to the offence of criminal intimidation under section 24 of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong) .
However, he may be guilty of an 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.