Evidence Tutorials All

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Tutorial 2
You are an intern assisting the law firm’s associate, Amy Suen (“AS”). AS has been working
on a common assault case. The client of this case, Daniel (“D”) (Aged 68, retired) is charged
with 1 count of common assault, contrary to s40 of the Offences Against the Person
Ordinance (Cap. 212).
It is the prosecution case that at about 22:30 hours on 3rd Nov 2021, D slapped his
stepdaughter, Veronica (“V”) (aged 17, secondary school student) while D and V were
watching television in the living room at home.
Two police officers arrived and were told by V that when the offence was committed, D’s
wife, Winnie (“W”) was also in the living room and witnessed the incident.
V made a complaint immediately to W. W ignored V’s complaint and V decided to dial 999 to
call the Police. D was arrested after initial investigation by the two police officers on scene
and was subsequently charged.
Last Wednesday, D pleaded not guilty to the charge in the Fanling Magistracy. A pre‐trial
review hearing will be held by the end of this month. The prosecution has preliminarily
indicated to the defence that W will testify for the prosecution at trial.
AS asks you to perform research and resolve the following issues:‐
a. Will W be a competent and compellable witness for the prosecution?

Competent – to give evidence for P (s.57(1) CPO)
- The provision under s.57(5) does not apply: W is not standing trial together with D
- S.58 CPO provides that s.57 CPO shall apply to all criminal proceedings and
‘courts’ includes DC and a magistrate
- The trial is to be held at Fanling Magistracy: thus: s.57 applies
NOT compellable – to give evidence for P (s.57(3) CPO)

- Does not fall within a specified offence under s.57(4) – discuss (a) (b) (c)
respectively – the offence charged – s.57(4)(a) does not apply, the age of V –
s.57(4) and (c) also do not apply.
b. Will W be a competent and compellable witness for the defence?

Competent – to give evidence on behalf of D (s.57(1) CPO) – s.57(5) is irrelevant
- (Relevant only when it concerns the issue of competence of W to give evidence for
P under s.57(1).)
Compellable – to give evidence on behalf of D (s.57(2) CPO) – s.57(5) does not apply: W
is not standing trial together with D
c. V is about to testify in Court for the Prosecution. Can V be asked about the details of how
she made the complaint to W and the Police?
Rule against prior consistent statement:
- The rule against prior consistent statement means that W is not entitled to give
evidence of statements on other occasions by W in confirmation of the testimony
(Gillie v Posho).
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Evidence that a witness has previously made a statement consistent to his current testimony
in court is inadmissible (R v Roberts).
Exception:
(1) Statements rebutting allegations of recent fabrication of evidence by the witness –
No info. About what cross-examination questions have been asked by the
prosecution.
(2) Not a sexual offence
(3) Statement not made by D, but V, here
d. Consider the following independent scenarios, will your answers in parts (a) and (b) be
different if:‐
i. V was 15 at the time of the assault? Or:
Compellable – to give evidence for P (s.57(3) CPO) – fall within a specified offence under
s.57(4)(b)(i) – an assault on a child of the family under the age of 16 – V is a child of the
family under s.57(12)(a) CPO – ‘a natural child of D’s wife’ – s.57(5) does not apply
ii. W is also found to be a co‐defendant, charged with the same offence, and will be tried
together with D?
NOT competent for P (s.57(1) CPO)
Competent for D (s.57(5) CPO does not apply)
NOT compellable for P (s.57(3) CPO)
NOT compellable for D (s.57(2) CPO): s.57(5) CPO applies: where D and W (i.e., D’s
wife) are standing trial together
Extra: what if no longer liable to be convicted – trigger s.57(6) CPO
e. If W is compellable to testify for the Prosecution, is there any way for W to seek
exemption?
Yes – s.57A(1) CPO
Where D’s spouse (W) is compellable to give evidence for P under s.57(3), W may apply to
the court for an exemption from the obligation to give evidence.
The court, by virtue of s.57A(2) CPO, will decide whether to grant such an exemption,: by
weighing the ‘risk’ and the ‘importance’ of the evidence.
It seems that W is the only witness – her testimony may be of significant importance to the
case.
f. Is D a competent and compellable witness?

Competent – both for P and on behalf of D – s.54(1) CPO
NOT compellable for P – s.54(1)(a) CPO (also: art.11(2)(g) HKBOR)
NOT compellable on behalf of D
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Tutorial 3
Recent complaint vs. Rebutting allegation of recent fabrication
 General discussion of recent complaint: terms and calling of recipients
o HKSAR v Chak Kong Fai (2022)
 Consistency of terms of complaints
o R v S (2004)
 Eavesdropper? -> YES
o HKSAR v YHM (2019)
 No need to call the recipients of complaint for rebutting allegation of recent
fabrication
o HKSAR v Low Ling Lee (2022)
 Exception for calling recipient of complaint
o HKSAR v So Tsz Yeung (2017)
1. You are an intern working with Amy Suen (“AS”), an associate of the law firm. AS was
impressed by your hard work last week and she decided to assign further tasks to you. This
time it is a magistracy appeal case against conviction.
The lay client, Mr Daniel Chan (“D”) (Aged 68, retired swimming coach) was convicted after
trial in the Magistrates’ Court on a charge of indecent assault, contrary s122(1) of the Crimes
Ordinance. The prosecution case was that at about 0845 hours on 20th April 2022, D
indecently assaulted X (a lady in her 20s) inside a MTR train.
Prosecution Case
According to X’s evidence, she was travelling by MTR from Tsim Sha Tsui Station to
Admiralty Station. Because the train was too crowded, she stood and held the pole in the
middle of the train compartment for support. She suddenly felt the pressure of something
exerted on her left buttock area and that continued for about 3‐4 minutes.
At the beginning, she thought it could be the bag of another passenger. Because of the
continuing pressure for minutes, she decided to look for the source. She soon realized that it
was D’s right index and middle fingers. D was standing on the left hand side of X and was
purportedly holding the newspapers with his left hand. When the train arrived at Admiralty
Station, X immediately reported the incident to the MTR staff. At the same time, 2
plainclothes police officers, DPC 9527 and DSPC 20447 approached her, asking whether she
was indecently assaulted.
D had been under police surveillance since he was wandering around the platform area in
Tsim Sha Tsui Station at about 0830 hours. DPC 9527 and DSPC 20447 followed D and got
on the train. The whole incident was witnessed by both DPC 9527 and DSPC 20447.
X confirmed the incident and reported the case to DPC 9527 and DSPC 20447. D was
arrested and charged. There was also a passenger, Eva Wong (“EW”) claiming that she
witnessed the incident.
At trial, X, DPC 9527, DSPC 20447 and EW all gave evidence about the incident as PW1,
PW2, PW3 and PW4 respectively.
Defence Case
The defence case is simple. D did not intend to touch X at all.
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Notwithstanding his right of silence (and he did not say anything to the police after being
arrested), D decided to give evidence in court. He did not dispute that he was on the train
with X and stood in the manner described by X. D was indeed reading newspaper at the
material time as he was thinking about how he should place his bet for the horse racing
games.
D said he might have inadvertently moved his fingers while he was doing some calculations
in his mind. It was also true that he did use his fingers to press on a surface to maintain his
balance while the train was travelling to Admiralty Station. He thought he was pressing on a
rucksack of a passenger nearby, until DPC 9527 and DSPC 20447 appeared and arrested him.
The Statement of Findings

There is a statement of findings by the trial deputy magistrate. Below are the extracts:‐
…
Analysis
13. The complainant, PW1, gave a detailed account of what happened at the material time.
Counsel for D sought to cross‐examine PW1 on her prior sexual history. I had no hesitation
to refuse pursuant to the ss154 and 155 of the Crimes Ordinance (Cap. 200).
CORRECT –
Protection of complainants in proceedings for sexual offences – s.154 CO
- s.154 CO provides that in a trial before the CFI relating to a rape offence or
indecent assault, except with the leave of the judge, no evidence and no question
shall be adduced or asked in cross-examination about V’s previous sexual
experience with a person other than D.
- Exceptions do not apply.
- s.154(2) – judge to grant leave
o “the judge shall give leave if and only if he is satisfied that it would be
unfair to that defendant to refuse to allow the evidence to be adduced or
the question to be asked”
o RELEVANCE (Lee Wing On)
 A question of discretion? vs. A question of judgement?
o What are the permissible purposes for cross-examination about V’s
previous sexual experience?
 Lau Chung Piu (2016): Lack of chastity =/= more likely to
consent =/= lack of credibility in the complaint
 Lee Wing On; Cheung Moon Tong: Another person responsible?
e.g., Permissible: when semen is found on V’s body but D claimed
not to have done so: semen belonged to someone else other than
D?
 Viola: Consent / D’s belief of consent
 e.g., Impermissible: to ‘infer’ consent of sex between V and D by
raising prior sexual experience of V with other people
 Tse Hoi Pan (2006): Credibility as to claim of penetration /
ejaculation (i.e., V’s (correct) understanding / perception as to
‘penetration’ and ‘ejaculation’)
- s.155(3) – makes s.154(1) CO applicable – Magistrate Court
- Unnecessary to ask anything about V’s prior sexual history, as it is not an issue in
dispute -> no unfairness to D
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> Why the ‘rape shield’?

May lead to stereotypical thinking among the jury; avoid prejudice to the complainant.
Extra – R v Seaboyer (1991) 2 SCR 577
14. In the course of analysing the evidence before me, I reminded myself and applied the
mandatory common law duty that no conviction should be made solely on the evidence
given by the complainant.
CORRECT –
“No conviction should be made solely on the evidence given by the complainant.”
- The deputy magistrate shall consider all evidence before him.
15. The corroboration requirement was readily met in this case because there were 3 other
eye‐witnesses who could give an account of what happened at the material time. The
evidence of PW2, PW3 and PW4 would be able to serve as the corroboration evidence
supporting PW1’s evidence.
WRONG –
Corroboration rule – s.4B EO –
Abolition of the corroboration rule of complainants of sexual offences.
(IA is an offence under Part XII of CO)
16. Not only that corroboration evidence was available, the identity of PW2 and PW3
made me think that no credibility issues would arise for PW2 and PW3. As properly
trained and well-paid police officers, they should have realized that giving false testimony
could lead them to disciplinary proceedings and criminal prosecution. They would not be
that foolish to give false evidence and to put themselves in a career crisis.
WRONG –
Assessment of credibility of witness – occupation related?
- Lee Fuk Hing v HKSAR
o The issue of reliability and credibility of witnesses shall be considered
impartially and fairly without putting a witness in a special and more
credible by virtue of its occupation or profession.
o  This case ALSO applies to single judge / magistrate!
 HKSAR v Man Shun Tai (2017)
 HKSAR v Chung Cheuk Pang (2017)
- The testimony of PW2 and PW3 shall be not be treated as credible simply
because they are police officers.
17. Counsel for D sought to attack credibility of PW2, who had been in the same team for
about a year, by suggesting to them that he had testified in 2 other cases related to indecent
assaults in the MTR trains and the magistrates in these cases did not believe PW2. Under
cross‐examination, PW2 denied the suggestion put forward by D’s Counsel. When D’s
Counsel sought to adduce statement to rebut PW2’s denial, I stopped D’s Counsel in light
of the well‐established collateral finality rule.
WRONG –
Finality rule of collateral issue (HKSAR v Wong Sau Ming (2003))
(1) The verdict of acquittal in the previous case involved a finding by the court that
the witness in question had lied (or which amounts to the same thing, that the
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court had disbelieved in the witness); and

(2) The circumstances of the previous case are of such a kind when compared to
those in the instant case and the previous finding is not so remote in time that the
finding of lying in the previous case would materially affect the court’s
assessment of the witness’s veracity in the instant case. Unless these
requirements are satisfied, cross-examination by reference to the acquittal in the
previous case should not be permitted.
Exceptions:
- “Unequivocally rebuts his denial” (HKSAR v Kong Wai Lun)
o “Where a PW denies, under cross-examination as to credit, that he has
been guilty of misconduct of a kind that would damage his credibility,
evidence that unequivocally rebuts his denial, such as a finding by a court
or tribunal to this effect, should normally be admitted for that purpose.
Where, however, the truth of the allegation of misconduct made against
the witness cannot be determined without what is, in effect, a separate
trial relating to that issue, the finality rule will normally preclude the
calling of evidence to challenge his denial.”
- Also: para. 38 of Wong Sau Ming
- Prior inconsistent statement (s.13 and s.14 EO)
- Previous convictions (s.15 EO)
 Finality rule applies to collateral issues that merely go to credit –

o vs. collateral issues that go to other issues in trial
 Kong Wai Lun
 HKSAR v So Kam Tong (2010)
 Recent revision of the principles in Wong Sau Ming:
HKSAR v Ng Fan Ying (2021)
Facts: PW challenged is a civilian: no previous acquittal nor previous finding by
the court; -> same principles still apply
o Importance of having solid foundation (i.e., can really prove that she lied
before)
o Duty to explain the relevance and lay solid foundation
Evidence that witness being disbelieved in previous court proceedings –
TWO THRESHOLD REQUIREMENT

- That PW2 was disbelieved in previous court proceedings related to indecent
assaults in the MTR can be admitted (following Kong Wai Lun) – “a failure to tell
the truth on an earlier occasion” which “bears logically on the weight that should
be accorded to the witness’s word”.
-  An exception to the (collateral) finality rule recognized in R v Funderburk,
category (c), (d), (f)?
18. In relation to the evidence of PW4, even though an unusual and unfortunate event
happened on PW4 that he passed away a day after giving his evidence in chief on Friday
but before the scheduled cross‐examination on the following Monday. I ruled that such a
situation would not affect the admissibility of the evidence. Nor should the weight attached
to his evidence in chief be reduced because of the absence of cross‐examination.
PARTLY CORRECT –
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R v Fung Tat Ko: Testimony given during examination in chief by a witness who dies
before cross-examination is still admissible, though the lack of cross-examination might
affect the weight attached to the testimony.
 Lack of cross-examination in such circumstances concerns the weight to be
attached to such evidence not its admissibility.
- Principled approach?
o Judge to exclude the evidence by discretion?
 e.g., What if the prosecution deliberately hides a PW to prevent
him from being cross-examined?
 e.g., a 1 (D) vs. 1(PW) case
19. I shall now turn to the analysis of the defence case.
20. D gave evidence notwithstanding he had the right to remain silent. I found D a
dishonest witness based on my observation on his demeanour. He appeared to be very
nervous and hesitant when giving evidence in chief and under cross‐examination. If he was
really telling the truth, I would expect he could be more assertive.
CORRECT –
Art.11(2)(g) HKBORO: “D gave evidence notwithstanding he had the right to remain
silent.”
WRONG –
“I found D a dishonest witness based on my observation on his demeanour.”
- Ng Wing Ming (1994)
o ‘Notoriously unreliable’ to rely only on demeanour of a witness to assess
its credibility
o The demeanour of a witness (e.g., the nervousness of D) can be a form of
evidence relevant to the issue of credibility of witness and weight of the
testimony.
o Yet, conclusions shall not be drawn solely from the reliance upon the
demeanour of witnesses.
Should look at –
 Inherent probabilities
 Consistency with undisputed evidence
 Contemporaneous documents
 Internal inconsistency
HKSAR v Egan (2010)
21. Under cross‐examination, D agreed that:‐

(i) he had been wandering around the platform area in Tsim Sha Tsui Station for about
15 minutes before getting on the train;
(ii) after getting on the train, he was standing very close to X at the material time;
(iii) he did not know X;
(iv) the train was crowded;
(v) it would be difficult to hold and read newspaper on a moving train;
(vi) he only held the newspapers with his left hand;
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(vii) he was holding nothing with his right hand;

(viii) he used his right index and middle fingers to press on X’s body;
(ix) the contact point was X’s left buttock;
(x) the contact took about 3‐4 minutes;
(xi) he at least eventually knew he touched X’s buttock;
(xii) he did not apologize to X after that.
22. Although the prosecution did not put the prosecution’s case to D, I was satisfied with
his answers under cross‐examination that:‐
(i) He intentionally assaulted X;
(ii) Taking the circumstances into account, the assault was capable of being considered as
indecent by right‐minded persons; and
(iii) D intended to commit such an assault of an indecent nature.
WRONG –
The duty of the cross-examination to put case, i.e., rule in Brown v Dunn (1893).
- Liu Chenghao (2014)

o A cross-examiner intending to suggest that a witness is not speaking the
truth or is lying on a particular point, or to challenge the credibility of the
witness’s evidence, has a duty to put his version of the facts to the witness
in cross-examination, so that the witness may have a fair opportunity to
respond to any challenge and allegations and explain any contradictions.
 Also: R v Fenlon (1980)
 “It is the duty of counsel to make it plain to the witness,
albeit he may be a co-defendant, that his evidence is not
accepted and in what respects it is not accepted.”
o If this is not done, the court would not know the explanations or
information which the witness might have been able to provide if he had
the opportunity to respond.
o Essential to fair play and fair dealing with witnesses.
[Putting the case is particularly important to witnesses than to the defendant!]
 Failure to put a case may or may not affect the conviction, depending on whether
there is unfairness.
o HKSAR v Chand Gill: Defense counsel’s failure to put case at trial
affected conviction on one charge but not the other;
o Ng Tat Kwong v HKSAR: Prosecution counsel’s failure to put case at trial
did not affect conviction on the charge;
- Here, ask: Whether the defense counsel has made his case to the witness?
- Not allowed to make certain arguments – grounds for appeal – depends on

whether the failure to put case is material to the outcome.
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Tutorial 4
Background Information
You have been assigned as the defence counsel for Mr Samuel Lam (Aged 40, Construction
Safety Officer) (“Samuel”). Samuel is being charged with one count of criminal damage and
the trial hearing will be held 3 weeks later.
Prosecution Case
The Prosecution case is that at about 5:30p.m. on 4th August 2022, a group of 8 construction
workers gathered outside the office of a construction site managed by Sloppy Construction
Limited (“Sloppy Construction”) in Shatin seeking to negotiate with management of Sloppy
Construction concerning the outstanding wages. A vehicle belonging to Sloppy Construction
with registration number SC3102 (“the Vehicle”) was damaged by Samuel.
No CCTV footage is available. The crucial piece of evidence comes from a security guard
employed by Sloppy Construction at the material construction site, Mr Choi. Below are the
relevant extracts from the statement of Mr Choi made to the Police Officer on 5th August
2022.
I am a security guard working in the construction site managed by Sloppy Construction

Limited in Shatin. My general duties include monitoring the entry and exit logs of the
construction site and to handle any emergency situations.
On 4th August 2022, I was on afternoon shift and was expected to work from 12:00 until
the midnight of 5th August 2022. Unfortunately, something chaotic happened at about 5:30
p.m.
At that time, I was on duty at the security post near the entrance of the construction site. I
saw about 15-20 construction workers wearing the same uniform gathered at the general
office of the construction site, requesting to see the senior management of Sloppy
Construction. I have been working with these construction workers together in the same
construction site for about a year and so I could recognise them.
I walked near the office and asked those construction workers to keep social distance while
waiting for the management but they refused to listen to me. They alleged that Sloppy
Construction had been failing to pay them wages for months. I remembered one safety
officer known as ‘Sam Gor’ (i.e. brother Sam) even told me that Sloppy Construction owed
him more than HK$150,000.
At about 5:45 p.m., the personal secretary of Sloppy Construction’s General Manager told
the construction workers that the General Manager refused to meet the construction
workers. Then the construction workers moved towards SC3102, which was parked about
80 metres away from the office. At the request of the General Manager’s secretary, I was
ordered to stay at the entrance of the office.
I still kept an eye on the construction workers. I saw them surrounding the SC3102. It’s a
white Toyota Alphard with tinted windows. About 8 to 9 of the workers surrounded
SC3102 and some sat in front of SC3102 to prevent it from moving.
Suddenly I heard the anti-theft alarm coming from the side of SC3102. I began to approach
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to SC3102 but those workers sitting in front of the SC3102 stood up and blocked my way
(as illustrated by the diagram). By that time I was about 40 metres away from the vehicle.
While I was being surrounded by the workers, I saw “Sam Gor”, the person I mentioned
previously, holding a hammer with his right hands and standing near the rear door of
SC3102. Then I heard the sound of smashing glass and applause from the construction
workers.
A not-to-scale diagram was drawn by the investigation officer DPC 22921 and it was
confirmed by Mr Choi.
Defence Case
Samuel confirms that he is known as ‘Sam Gor’ among workers of the construction site and
there is only one ‘Sam Gor’ in this community. However, he claims he did not commit the
offence. He only stood near the rear door of SC3102 but did not damage the vehicle. When he
was arrested by the Police on 4th August 2022, he remained silent.
Questions
1. Mr Choi is likely to give evidence in chief in line with his statement to the police. Suggest
ONE(1) fact which you may elicit in the cross-examination of Mr Choi concerning his
identification of Samuel.
- Workers gathering near car/position of Samuel at back of car
- Worker wearing same uniform
- 5:45 getting dark
- Whether other workers holding tools
- Height of Mr choi and Samuel (with relevance to height of vehicle)
- PW1 eyesight defects
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- Windows were tinted

- Whether he kept his eye on Sam gor when he was walking over (did not see his
smashing)
2. Suppose the court finds the evidence of Mr Choi admissible, with reference to the Turnbull
guidelines, suggest TWO(2) features which you would comment on Mr Choi’s identification
in the Defence closing submission.
Step 1: What is the principle/direction about
- If the case against D is substantially dependent or wholly depends on
identification evidence (1) then the Court should apply the Turnbull direction in
assessing quality of the identification evidence (1)
- If quality of ID evidence is good:
o The matter should be left to jury to decide and warn the jury the special
need for caution before convicting D, the reason for such a warning and
that it is possible that mistaken witness can be a convincing one
 Wrong conviction based on wrong but convincing ID
 Circumstances of the ID
 Specific weaknesses of the ID
 Supporting evidence
 Does it apply to identification of clothing? (No: R v Galye; 香港特
別行政區訴吳兆軒 [2021])
- If the quality of the ID evidence is poor:
o The judge should withdraw the case and direct an acquittal (1) unless
there is other evidence which goes to support the correctness of the
identification
(Weak ID + no supporting evidence e.g., fleeting glance)
 What if the Turnbull guidelines were not given?

Jury trials? – R v Wong Ka Shen (1996)
Single judge? – HKSAR v Nguyen Lam; Wan Yat Man
Step 2: Case authority – Turnbull
Step 3: Rationale – to avoid miscarriage of justice
Step 4: Application (1-2 marks)

- Features mentioned in Q1 and explain why they make ID evidence unreliable
Step 5: Wording of the direction – N/A for Turnbull questions
Step 6: Other potentially relevant matters

- If the case regarded a single magistrate, does the Turnbull direction still need to be
mentioned? No Nguyen Lam as long as the cautions discussed in Turnbull are
mentioned and taken into account by magistrate.
3. Based on the facts available, do you think it is necessary for the court to give and apply the
lies direction before reaching the verdict?
o Lies direction is only required when:
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Credibility of the defendant is a material issue in the case (1)

Prosecution is trying to use lie to strengthen the prosecution
case/supportive of prosecution case (1)
o The jury may wrongly infer guilt directly from the conclusion that the
defendant is not telling the truth (1)
Step 2: Case authority – Jim Fai, Yuen Kwai Choi, Zhou Limei (1)
Jim Fai
//21. Generally speaking, a lies direction is only necessary where the prosecution intends to
use a lie alleged to have been told by an accused to establish or assist its case or to
strengthen in inference of guilt or where there is a danger that the jury may engage in an
impermissible process of reasoning to the disadvantage of the accused. It is given in order
to ensure the accused has a fair trial. Where, as in the majority of cases, there is simply a
conflict between prosecution and defence evidence and an allegation is made that the
accused in giving evidence has told a pack of lies and that his evidence is not worthy of
belief, it is not only unnecessary but also inappropriate to give a lies direction. The usual
direction on the burden and standard of proof would be sufficient in those circumstances.
Jim Fai / Liberato Direction

//16-17. It is only when the jury feel sure that the prosecution evidence is true and can be
relied on that they can convict the accused. If they disbelieve the prosecution evidence or
entertain a reasonable doubt in such evidence, they are not to convict upon it.
On the other hand, when it comes to defence evidence, even if the jury totally reject it, they
still have to be sure that the prosecution evidence is true and that there is no reasonable
doubt before they can convict the accused.
//If they think that the defence evidence pointing to innocence is true or may be true, it
would follow that the defence has raised sufficient doubt in the prosecution case. In that
case, the jury have to acquit him.
//As Brennan J said in Liberato & Others v R (1985) CLR 507 at 515: “The jury must be
told that, even if they do not positively believe the evidence for the defence, they cannot
find an issue against the accused contrary to that evidence if that evidence gives rise to a
reasonable doubt as to that issue.
[When is the Liberato Direction necessary?]

HKSAR v Kwan Tat Yee (2023)
(i) If you believe that accused’s evidence (i.e., the accused’s account in his interview with
the police) you must acquit;
(ii) If you do not accept that evidence (account) but you consider that it might be true, you
must acquit; and
(iii) If you do not believe in the accused evidence (i.e., the accused’s account in his
interview with the police) you should put that evidence (account) to one side. The question
will remain: has the prosecution, on the basis of evidence that you do accept, proved the
guilt of the accused beyond reasonable doubt?
//At a trial where there has been no suggestion, whether express or implied, that the jury’s
determination turns on which of conflicting prosecution and defence versions is to be
believed, there may be no need to expand on conventional directions as to the onus and
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standard of proof.//
//110. In most cases, a Liberato Direction will be unnecessary so long as the jury are
directed that they may not convict unless they are satisfied beyond reasonable doubt of
guilt. The critical criterion for when it is required is that there is a risk that the jury may be
left with the impression that the evidence on which the accused relies will only give rise to
a reasonable doubt if they believe it to be truthful or that a preference for the evidence of
the complainant suffices to establish guilt.//
[SUMMARY]
Generally, only directions that (1) you can only convict if the prosecution proves guilt
beyond reasonable doubt; and (2) no burden for defence to prove innocence; are needed
o If there is a risk that jury may think evidence relied on by the defence can only be
taken into account / give rise to a reasonable doubt if they find it truth;
o Or
o If there is a risk that the jury may think a mere preference for the P’s evidence is
sufficient to convict (e.g., convict just because defence case was tidally rejected)
A liberator direction may be needed true or maybe true even if you totally disbelieve D,
cannot convict unless P proves BRD;
The revisited Liberato Direction also relinquishes risk to misuse lies to strengthen guilt
when P has not sought to
Lies direction necessary only when P uses lies to strengthen guilt / a risk to misuse lies
 The right message ought to be conveyed
[What if a lies direction is unnecessary given?]

o “Wholly inappropriate” – HKSAR v Bian Zhenju (2015)
 But before even considering directions … -

RELEVANCE! – HKSAR v Zhou Limei (2020)
//70. In our view, for the sake of fairness, before allowing the prosecution to make use of
the so-called lies and concealment of facts on the part of the applicant as evidence against
the applicant, the trial judge must first consider whether such acts are relevant to the
offence the applicant is alleged to have committed. Even if the judge takes the view that
the lies and concealment of the facts are relevant to the offence the applicant is alleged to
have committed, the judge must also remind members of the jury to ensure that they will
not misuse such evidence (see HKSAR v Wang Jinwei (2018) at Para.51)
Step 3: Rationale – Remind the jury that there may be an innocent reason for telling the
lie (1)
Step 4: Application – No (1) The facts given do not suggest that the Tribunal would use
D’s lie to infer guilt + does not seem that prosecution is using lie to strengthen prosecution
case etc, so no need to give lies direction (1)
Step 5: Wording of the direction

o If no need to give lies direction, the usual directions on burden of proof and
standard of proof would suffice
o If there is a need for lies direction, the wording to be followed is Mo Shiu
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Shing
Magistrates do not need to mention the cases on lies direction as long as they keep in mind
the rationale [HKSAR v Chiu Kit & Ors (unrep CACC210/2009, 20.5.2010 at para 61)]
o Note: Lies direction is only relevant when D gave the lie (so here it is
assuming sam gor is lying)
4. Suppose Samuel elects to give evidence at trial, will the fact that he chose to remain silent
after the arrest be subject to comments of the court?
o Court cannot make comments on silence out of court
o For the purpose of inferring guilt (1)
o In assessing credibility (1)
Step 2: Case Authority: Lee Fuk Hing (1)
Step 3: Rationale: D has the right of silence
Step 4: Application: Identify whether magistrate has applied wrongly

o If the prosecution made inappropriate comments in his closing about D’s
silence out of court, it can be remedied by directions in summing up
(HKSAR v Nguyen Anh Nga (No.3)
o Silence in court
o S54(1)(b) and s54(1)(e)CPO
o Li Defan Even though D can choose not to give evidence at trial, proper
inference can be drawn
o Follow the step approach above
What about non-complaint of police misconduct?

HKSAR v Lam Sze Nga: Complained about police planting drugs on her and police
coercing her into confessing; but only 4 months after the acts happened
o The jury should be directed:
o Did the defendant waive her right to silence? (Expressly or impliedly)
 -> Non-complaint can be used to challenge whether she has waived
her right to silence voluntarily or not
//(1) Did the police coerce her into making the statements?
(2) If yes, then the statements were not voluntary and (since one could not involuntarily
waive a right) she had maintained her right of silence – in which case her evidence in
cross-examination on the delay in complaining should not be taken into account and
adverse inferences could not be drawn.
(3) If no (and before giving this answer, the jury would have been entitled to take into
account for this limited use evidence on the delay in complaint), then the statements were
voluntary and she had thereby waived her right of silence. (Presumably in that situation,
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adverse inferences could be drawn from all the evidence).
In other words, where questions on the delay in complaining would not have been
admissible for the Guilt Use or the Credibility Use, they would be admissible for what, for
want of a better term, one might call the “Availment Use”.//
HKSAR v Chan Chu Leung [2022] 5 HKLRD 448

(Anthony:
Ridiculously wrongly decided case: as it drastically reduces the scope of right to silence)
 No free-standing right to no-complaint unrelated to the exercise of right to silence
(?)
 Right to silence is ONLY (?) limited to not disclosing information “about the
occurrence of an offence, the identity of the participants and the roles which they
played” (???)
 Clear conflict with the words of police caution regarding ‘right to silence’: “… you are
not obliged to say ANYTHING 唔係是必要你講 …”
o Liberato direction and lies directions are not mutually exclusive

o Kwan Tat Yee is being appealed to CFA
o Chan Chu Leung did not overrule Lam Sze Nga
 CCL just distinguished LSN, although somewhat problematically
o HKSAR v Raman Kapusamy
 M Poon JA: “At no time was the prosecuting counsel relying on the
lie/concealment of the keys to support the prosecution case. On the
contrary, to give a lies direction based on the ‘no key’ answer of the
applicant would be to convert a neutral issue of credibility to use
which the jury could, with the direction of the judge, use against the
applicant.”
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Tutorial 5
You are now working as a part-time intern of the law firm Lai, Kwok, Cheung and Lau,
solicitors. Your principal, Mr. Lau (“Lau”) needs your assistance regarding a new case
involving a corporate client, Tremendous Growth International Finance Limited. (“TGIF”).
Two weeks ago, the Commercial Crime Bureau of the Hong Kong Police Force conducted a
search with warrant at the registered office of TGIF in Wan Chai. In the presence of Lau and
the sole shareholder and sole director of TGIF, Mr. Peter Ho (“Ho”), a box of documents was
seized by police officers.
Ho was arrested as he was suspected to be the mastermind of a scam carried out through
TGIF. The police received complaints from about 40 clients of TGIF that after joining an
Investment Scheme promoted by TGIF in about early 2016, they were unable to reach any
staff of TGIF upon the expected maturity date in December 2021.
Knowing that some of the documents could be privileged, special arrangements were made
by the police officers so that those documents which could possibly be subject to legal
professional privilege (“LPP”) were sealed pending further determination/direction from the
court. These include: -
(i) Counsel Advice dated 18th August 2014 in relation to a District Court case in 2014 about
misrepresentation which TGIF was a defendant;
(ii) The email correspondence between Lau and Ho dated 3rd February 2020 regarding their
views on the property market and whether Ho should sell the properties held under TGIF
during the COVID-19 pandemic;
(iii) Confidential written advice from EDPK Ltd, an accounting firm, to the board of directors
of TGIF dated 6th October 2018 as to the desired form of corporate structure and practice
to minimize the possible personal legal liabilities of Ho as a result of running a business.
In the said advice, some court cases related to piercing the corporate veil were discussed;
(iv) The email correspondence in December 2018 between Mr John Chan, the Human
Resources Manager of TGIF, and Ms Amy Wong, the in-house Legal Manager of TGIF,
regarding the standardized terms of the employment contracts between the employees of
TGIF and TGIF;
(v) A written advice of Lau to Ho dated 3rd March 2018 about setting up another company to
transfer the assets held by TGIF to Ho and the desired ownership structure.
(vi) The email correspondence between Ho and Chris Fong, the Chief Financial Officer TGIF,
on 3rd January 2020 regarding the transfer of fund from the Bank Account of TGIF with
Hong Kong Tiger Bank to another account of the same bank held by another private
company limited by shares registered in Hong Kong. The beneficial owner of the said
company is and was Ho at all materials times, even though it has been held by a nominee
shareholder, Mr. Norman So.
Tutorial Notes
 LPP
Legal professional privilege protects the confidentiality of bona fide communications
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between lawyer and client concerning matters of legal advice or in reference to litigation,
be it on-going or in contemplation. The privilege conveys the right to resist the compulsory
disclosure of those communications.
Confidential communications / documents generated: -

(1a) between legal adviser and client
(2) for the dominant purpose of
(3a) seeking legal advice (LAP); or
(1b) between legal adviser, client, third party

(2) for the dominant purpose of
(3b) contemplated or actual litigation (LP).
 LPP and rules of evidence

All relevant evidence is admissible unless it falls within one of the exclusionary rules.
Communications between client and lawyers often ‘relevant’, even of high probative value.
But it will NOT be admissible in a court of law as evidence unless LPP is lost
(exclusionary rules).
 How can LPP be lost?

- Waived by the client
o Partially or fully
o Citic Pacific (No.1)
- Fraud exception
o Citic Pacific (No.1)
o Perhaps not conceptually an exception (i.e., LPP simply does not cover
fraud
- Abrogated by statutes
o MK v Registrar of High Court (2023)
 MK applies legal aid; MK owns a pet shop and asks solicitor
whether her owning of the pet shop would prevent her from
obtaining legal aid;
 No fraud involved in her communication with the solicitor
 But on appeal by legal aid department: legal aid argues that the
‘fraud exception’ is irrelevant; we only need to refer to the legal aid
ordinance where it stipulated that solicitors shall report to legal aid
any suspect regarding the client’s situation
Questions
1. To prepare for the conference with Ho, explain whether each of the abovementioned
documents is subject to LPP.
(i) Counsel Advice dated 18th August 2014 in relation to a District Court case in 2014
about misrepresentation which TGIF was a defendant;
Relevant test: Whether the document was produced or brought into existence with the
dominant purpose that it or its contents be used to obtain legal advice?
‘Lawyers / legal advisers’ – includes legal executives, barristers, solicitors acting in the
capacity of legal advisers for private / public organizations > Passed
‘Client’ – TGIF is a corporate > Passed
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‘Confidential’ – (Three Rivers) ascertained by the intention of the parties, communications

between the legal adviser and the client are generally regarded as confidential > Passed
‘Communications’ – LP: only apply to the communications between solicitor and the third
party which ‘come into existence in contemplation of the litigation and which are made with
the dominant purpose of such litigation’
- Raw materials? Pre-existed documents? – if yes: not privileged
- Copies of privileged communication / documents – privileged
No waiver
Fraud exception?
- Is it about the current investigation?
- Even if yes, differences between “furthering a crime” vs. “defending an allegation of a
crime”.
(ii) The email correspondence between Lau and Ho dated 3rd February 2020 regarding
their views on the property market and whether Ho should sell the properties held under
TGIF during the COVID-19 pandemic;
‘Lawyers / legal advisers’

- Lau is a solicitor; yet, he may not be acting within his capacity as a legal advisor
- Citic Pacific Ltd: helpful indication might be whether the communication involves the
use of skills for which an external lawyer could claim privilege, if not, this may
suggest he is acting in a non-legal or executive capacity.
‘Client’ – Ho is a client
‘Confidential’ – yes
‘Communications’
- LLP: only apply to ‘confidential and spoken or written to or by the legal adviser in his
professional capacity and for the dominant purpose of receiving or giving legal
assistance’.
- Dominant purpose test: the dominant purpose is not to seek legal advice, but to seek
commercial advice (Citic No.2)
- Likely unable to pass
(iii) Confidential written advice from EDPK Ltd, an accounting firm, to the board of
directors of TGIF dated 6th October 2018 as to the desired form of corporate structure and
practice to minimize the possible personal legal liabilities of Ho as a result of running a
business.
In the said advice, some court cases related to piercing the corporate veil were discussed;
‘Lawyers / legal advisors’

- Legal advice provided by accountants are not protected by LPP (Super Worth
International Ltd v Commissioner of ICAC)
- Not passed
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‘Client’ – yes; employees / board of directors are considered as the corporate (Citic Pacific)
- Passed
‘Communications’ - ?
(iv) The email correspondence in December 2018 between Mr John Chan, the Human
Resources Manager of TGIF, and Ms Amy Wong, the in-house Legal Manager of TGIF,
regarding the standardized terms of the employment contracts between the employees of
TGIF and TGIF;

- Amy Wong is the in-house Legal Manager of TGIF > passed
‘Client’ – yes; employees / board of directors are considered as the corporate (Citic Pacific)
- HR manager acts as an agent for the corporate TGIF
- Passed
‘Communications’ – Dominant purpose test
No waiver and no fraud exception.
- Three Rivers: if a solicitor becomes the client’s ‘man of business’ responsible for
advising the client on all matters of business, the advice may lack a relevant legal
context
- Not passed?
 Documents created for the dominant purpose of seeking legal advice?

[What about in a yearly review, a sample of currently in use employment contract was sent to
Amy for advice. Is the sample of the contract subject to LPP?]
- PRE-EXISTING DOCUMENTS (-> Not subject to LPP) vs. documents generated for
the dominant purpose of seeking legal advice
- The dominant purpose of the ‘time of creation’: whether it is for litigation purpose?
- If Amy has given feedback on the contract -> May be subject to LPP
(v) A written advice of Lau to Ho dated 3rd March 2018 about setting up another company
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to transfer the assets held by TGIF to Ho and the desired ownership structure.
1st Type: LLP

- Yes; Lau is a solicitor acting within his capacity as a legal adviser
‘Client’ – yes; Lo is a lay person
‘Communications’ - ?
- LLP: only apply to ‘confidential and spoken or written to or by the legal advisor in his
professional capacity and for the dominant purpose of receiving or giving legal
assistance’
- Dominant purpose test
- Likely to pass
Fraud exception? – e.g., for embezzling money? Furthering the fraud in question?
(vi) The email correspondence between Ho and Chris Fong, the Chief Financial Officer
TGIF, on 3rd January 2020 regarding the transfer of fund from the Bank Account of TGIF
with Hong Kong Tiger Bank to another account of the same bank held by another private
company limited by shares registered in Hong Kong. The beneficial owner of the said
company is and was Ho at all materials times, even though it has been held by a nominee
shareholder, Mr. Norman So.

- Both Ho and Fong are not legal advisers; not for litigation; no LPP
Extra –
 Patient tells psychiatrist that he feels depressed and anxious because he had killed his
girlfriend and he is afraid of being caught by the police. Psychiatrist diagnoses the
patient to be suffering from depression and anxiety and prescribes some anti-
depressants for the patient.
 Would the judge allow the psychiatrist to testify against the patient (defendant) in the
murder trial?
 How is it different from, say, the police secretly install surveillance camera in the
defendant’s home and uses that video against the defendant?
- Evidence is relevant.
- LPP not applicable: psychiatrist not legal advisor
- Confidentiality between doctor and patient (=/= LPP! Though LPP covers
confidentiality)
- Constitutional right to privacy
- Privilege against self-incrimination
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 Drafts or attendance notes which contain evidence of the attesting witnesses on

attestation and execution in a probable action may be disclosable.
o Estate of Nina Kung (No.1) [2009] HKLRD 149
o Other forms of inquisitorial / quasi-inquisitorial litigations, e.g., child-welfare
proceedings?? (Re L (A minor) [1997] AC 16)
 Litigants in person?
o Axa China Region Insurance Co Ltd v Pacific Century Insurance Co Ltd
[2005] 3 HKC 359
 Advice from foreign lawyers?
o S.39A(2) Legal Practitioners Ordinance; PJSC Tatneft v Bogolyubov
 Foreign litigation?
o re Duncan, Deceased; Garfield v Fay [1968] 2 WLR 1479
2. In case the document(s) is/are subject to LPP, under what circumstances the
document(s) will have to be disclosed? Explain your analysis to Lau.
Exceptions
 Can be waived by the person, the client, entitled to it (Three Rivers)
o Full waiver?
o Partial waiver? – Citic surrendered the documents to the SFC, privilege
partially waived only to the extent necessary to enable SFC to carry out the
investigation and no other purposes
 Entitled to invoke the privilege against all third parties
o TGIF surrendered the documents to the PF as they conducted a search at the
office of TGIF
 Waive of privilege by communication to a third party

o Whether the disclosure to a TP was attended by a degree of confidentiality
o Not applicable here
 Can be overridden by statute (R v Special Comr of Income Tax)
 Jones v Smith – Court held that legal privilege can be set aside if a sufficiently
compelling public interest for doing so (e.g., public safety) is shown;
o Yet, no other common law jurisdiction has developed the law in this way
 Fraud exception
o Communication which were criminal, fraudulent; or intended by one of the
parties at least to further some future criminal or fraudulent purpose (no public
interest) (Citic Pacific Ltd)
o Lay before a solicitor the facts relating to a charge of fraud and make it with
the objective of being advised about the best way to meet it vs. Consulting the
advisor in order to learn how to plan, execute, or stifle an actual fraud
(O’Rourke v Darbishire)
o Must be prima facie evidence / case (Bullivant v AG for Victoria)
o Two stage test
 Whether there is a prima facie case of fraud by client? Here, yes
 Whether there is a prima facie case that the document concerned came
into existence as part of the fraud? (V) and (VI)?
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 If a solicitor becomes the client’s man of business responsible for advising the client
on ALL matters of business, the advice may lack a relevant legal context (Three
Rivers)
Applicable to (IV)
Extra Notes:-
- Fraud exception and prima facie case
o Kuwait Airways Corp v Iraqi Airways Co [2005] 1 WLR 2734
o MK (CFI): “One does not accept the impugned evidence so as to make the rule
apply.”
o If necessary, court may inspect the documents (A v Commissioner of Police)
or rely on special counsel (Super Worth)
- Advice given by non-lawyers can have litigation privilege
- Accidental leakage of privileged documents does NOT destroy privilege (R v Uljee;
Citic No.1)
- Copy of non-privileged documents still not privileged even if passed to solicitor for
legal advice (Citic No.2)
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Tutorial 6
Background
A key intended learning objective for this topic to understand and apply various admissibility
conditions to the intended expert opinion evidence proposed by a party.
In the tutorial session for this topic, students will be randomly divided into 3 groups and play
the role of the prosecutors, defence lawyers and judges/magistrates respectively to discuss
selected scenario(s).
Judges and magistrates shall hear submissions from the Prosecution and the Defence and
make a ruling on the admissibility of evidence.
Preparation for the Tutorial Session

Consider the 3 scenarios below.
Based on the established legal principles about admissibility of expert opinion evidence,
think from the perspectives of both the Prosecution and the Defence and illustrate (in brief
bullet points) how you would persuade the tribunal of law to rule in favour of your party. You
will be invited to share your views depending on your assigned role in the tutorial.
Remarks
If you think the facts given in the scenarios are insufficient, you may make assumptions on
the unknown facts. In the tutorial session, you may be invited to share why making such
assumptions is crucial for your analysis.
In real practice, legal representatives may perform substantive legal research to look for cases
in various jurisdictions in support of their arguments. In order not to overwhelm students, you
are NOT expected to do so for the purpose this tutorial session. Simply make use of the
principles you learned in the lecture and make your arguments.
Scenario 1
In a drug trafficking case before the District Court where the defendant (an Asian male)
was found to have 20g of cocaine in his possession, the Prosecution seeks to adduce expert
medical evidence from a psychiatrist that on the average daily consumption rate of cocaine
for an Asian male is about 0.3g-1.4g per day.
The Defence wanted to plead guilty to possession of cocaine but the Prosecution is of the
view that this is a case where the Defendant intended to supply cocaine to others (and
therefore insists on the prosecution of trafficking charge).
Pros.
1. Relevance
- 20g of cocaine: can be consumed within 14 days (fastest) – 66 days (slowest)
2. Necessity
- Ordinary people don’t take cocaine
3. Reliability
3.1 Reliability of the field of expertise
3.2 Qualification of expert witness
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Defence.
1. Relevance
- ‘Average daily consumption … Asian male’: ‘Asian’ vs. ‘Hong Konger’
- Level of difficulty to access drugs?
- The fact that D bought more in quantity may not necessarily infer that D is going to
supply to others:
o Cheaper to buy in bulk?
o Not very convenient to buy drugs, so buy more in one go?
o Cocaine probably expires after a long time, so no harm to buy more?
HKSAR v McCall (2018)

- Judge refused the expert evidence on ‘daily consumption rate’, for the reason that
the expert only based his evidence on 2 researches, and the researches are not done
in Hong Kong
Scenario 2
In a case of ‘soliciting for an immoral purpose’ to be tried in the magistracy, the
Prosecution seeks to adduce expert evidence from a Hong Kong sociologist specializing in
the Hong Kong compensated dating culture to prove that the oral conversations between
the Defendant and the undercover police officer in a public place were in fact
conversations soliciting for an immoral purpose (i.e. inviting the undercover police officer
to have sexual intercourse).
The undercover officer is going to give evidence as a prosecution witness and so the issue
of using the evidence for a hearsay purpose can be disregarded.
What the defendant said Meaning of the sentence proposed by

the prosecution’s expert
Sentence A Are you looking for your Looking for daddy is the common code
daddy? word used in the compensated dating field
to confirm the subject’s availability for
sexual services.
Sentence B Dad will pay you $3,000 for This was a sentence soliciting for sexual
staycation on this Saturday, intercourse with an overnight stay in a
okay? hotel for a price of HK$3,000.
Pros.
1. Relevance
- Relevant for the purpose of the conversation
2. Necessity
- Ordinary people unfamiliar with the conversations/procedures related to
compensated dating
3. Reliability
- Is ‘sociology’ a field of knowledge sufficiently experienced/reliable regarding
compensated dating?
- Is the expert himself qualified?
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Defence.
1. Relevance
- Irrelevant because it is out of context (i.e., ‘staycation’ does not necessarily mean
‘sexual service’; ‘sexual service’ does not necessarily include ‘sexual intercourse’)
- Even if relevant, the probative value is so low that it ought to be excluded by
judicial discretion
2. Necessity
- Ordinary people are sufficiently exposed to the culture of compensated dating in
their daily life?
- Compensated dating not that novel
3. Reliability
Scenario 3
In a case of ‘using a false instrument’ to be tried in the magistracy, the Prosecution seeks to
adduce evidence from a paper dating expert to show that the will presented by the
Defendant to the purported to be made in 1998 was in fact forged in about 2012.
Pros.
1. Relevance
2. Necessity
3. Reliability
3.1 Reliability of the field of expertise
- New Science (Nina Wang’s case: ink dating): if the reliability of a science theory is
put on issue, all of the conditions below have to be fulfilled:-
(a) The person propounding the scientific theory must have the necessary
qualifications, expertise, experience, and integrity to ensure that the court can have
confidence that his testimony is worthy of consideration.
(b) The theory must have a sound scientific basis, comprehensible to the court
(c) The theory should have gained widespread support amongst that sector of the
scientific community which would be likely to utilize it or its results.
(d) The methods used to carry out the scientific test should be safe and reliable, and
follow an established protocol, i.e., one that has been published, disseminated and
acknowledged to be reproducible.
3.2 Qualification of expert witness
Extra Notes:-
- Suppose a lay witness says,

“I thought that A was delusional and had an aggressive tendency.”
- Admissible?
 Depends on what you are trying to prove with this statement
Permissible only if: the ‘opinion’ admitted to prove the witness’s belief in A’s state of mind
that ‘caused’ the witness’s subsequent act
Not permissible if: the witness’s opinion on A’s state of mind intended to be proved to be
true
- Re Estate of Nina Kung (No.2) (2009)
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Issue: Whether the will held by Chan Chun Chuen was a ‘fung shui will’ to extend the life
of Nina Kung and hence lacks testamentary intention
Held: Accepted the fung shui master’s expert evidence only on “whether the practice of
making a fung shui will is prevalent”
- Why is it bad to admit ‘unnecessary’ opinion evidence?

R v Turner
 Reasoning prejudice
//If on the proven facts a judge or jury can form their own conclusions without help, then
the opinion of an expert is unnecessary. In such a case if it is given dressed up in scientific
jargon it may make judgment more difficult. The fact that an expert witness has impressive
scientific qualifications does not by that fact alone make his opinion on matters of human
nature and behaviour within the limits of normality any more helpful than that of the jurors
themselves; but there is a danger that they may think it does.//
- Reliability
 Purpose matters
Fu Kor Kuwn Patrict v HKSAR (2012)
//Nevertheless their experts and testimony seem riddled with inadmissible evidence; for
example: “my personal disbelief in the possibility of the circular trading being coincidental
rather than pre-arranged”; “the rebates create this arbitrage opportunity, so, in my view, the
purpose was to exploit this arbitrage opportunity”, etc. The function of the experts was to
put forward facts and matters concerning the derivative-warrant market, from which the
court might draw an inference concerning the defendants’ subjective intention and purpose.
Full stop. Here, the experts appear to have strayed well beyond their field of expertise: This
might well have been the reason why the judge ultimately pushed aside the expert evidence
and drew upon “common sense”.//
 A failure to comply with procedures may render the evidence inadmissible
Real life examples:

- Triad experts
- Expert on protest-related languages
o e.g., Tong Ying Kit
o e.g., 伍文浩 (2022) – TG language
- Gambling expert
- Laser pointer expert
- ID expert
- Expert of surveying why people partake in protests (Tai Yiu Ting (2019))
- Ad-hoc expert (HKSAR v 林子健 (2020): Citing AG’s Ref (N0.2 of 2002))
o //31. 控方依賴上訴庭案例 AG’s Ref (No.2 of 2002) 指起碼在下列四種情
況下，法庭可容許辨認證據呈堂，在陪審員得到適當引導的情況下，
用之證明罪案現場影像所見的就是被告人。倘若法庭行使斟酌權將證
據摒除，則另作別論:
 (i) 若現場影像足夠清晰，陪審員可以將之與犯人欄內的被告人
作比對；
 (ii) 若證人足夠地熟悉被告人，以致他可以認出影響中的就是被
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告人。在這種情況下，即使相關影像已經不見了，證人仍可就
辨認作證。
 (iii) 若證人不認識被告人，但用了相當時間檢視及分析現場的
影像和照片，從而獲得特別的知識 (special knowledge), 是陪審
團所沒有的，而相關影像和照片又有提供予陪審團參考，證人
便可以憑藉對比現場影像及被告人的近照，就前者中的是否就
是被告人作證；
 (iv) 若證人擁有面部辨識的合適資格，而相關現場影像和照片
又有提供予陪審團參考，他便可以憑藉對比現場畫面（無論該
些畫面是否經過加強）及被告人的近照，就前者中的是否就是
被告人給予意見證供；
Discrediting expert evidence?

- Disbelieved before?
- Disciplined by authorities before?
- Methodology (sample size too small or misleading questions)?
- Biased (police officer)?
- General vs individual case?
- Assumed facts
Based on what PWs say which may be contradicted by other testimony
e.g., “Based on what PWs say what happened at the scene, I opine that the cause of
accident was …”
e.g., “Based on what the witness told me during the consultation period, my diagnosis is
…”
 If the facts are not proven, the opinion may lack weight too
Expert witness should be in the courtroom to change their conclusion if needed
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Tutorial 7
You are about to appear on behalf of the HKSAR Government in the Magistracy Appeal case.
The Appellant (Mr Dave Cheng (“D”), a property officer of Sunflower Garden) was
convicted of one count of indecent assault against D’s colleague, Ms X (“X”), a property
assistant of the same housing estate. At trial, D appeared in person. He is currently legally
represented for the appeal hearing. He appeals against the conviction. Below are some
relevant facts related to the case.
Trial Hearing
The prosecution case was that on 8th January this year, D brushed his hand against X’s
buttock twice when D was having lunch with X in the staff common room of Sunflower
Garden. X (as PW1) gave evidence as to how she was touched by D. The Prosecution also
called another colleague of X and D, Ms Winnie Wu (“W”) as PW2. W told the court that on
1st January this year, D touched W’s buttock while they were having breakfast together in the
same staff common room. Under cross-examination by D, both X and W denied colluding
with each other by making up the prosecution’s case.
D elected to give evidence. Under the cross-examination, D was asked by the prosecution
about an incident in 2016 when another property management assistant lodged a complaint
against D in relation D’s sexual harassment in the property management office of Sunflower
Garden. D admitted that there was such an allegation but it was a misunderstanding. D said
he had already apologized to the alleged victim and there was no further action against him
by the property management company.
D has no criminal conviction records but the trial magistrate said it would be unnecessary to
apply any good character directions in D’s case due to the multiple allegations against him
from different parties.
Questions
Counsel representing D in the upcoming appeal hearing submitted the following grounds of
appeal. Evaluate the merits of each of the grounds with reference to the relevant cases and/or
legislation.
(a) The trial magistrate erred in ruling the evidence of X and W admissible when there were
allegations of collusion and concoction against them;
 Assuming W’s evidence is relevant to an issue other than mere propensity;
 Zabed Ali
//Whether its probative force in support of an allegation against the accused is sufficiently
great to make it just to admit it, notwithstanding that it is prejudicial to the accused//
 Allegation of collusion relevant to probative value?
- R v H: generally a jury question
- Assuming W’s evidence was true
- Unless no reasonable jury could find it free from collusion
 Different approach in Canada; R v Handy
Where there is an allegation of collusion / concoction of events between the current offence
subject to trial and the similar fact evidence adduced by P
 Not a matter affecting admissibility (R v H)
- Still apply the DPP v P test that generally collusion is not relevant
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- Judge should approach the question of admissibility on the basis that the similar
facts alleged are true and apply the test set out in DPP v P
- The fact that there is collusion alone does not affect admissibility, but the probative
force of the evidence may be effected
 This ground of appeal does not have any merits
(b) The trial magistrate erred in allowing W to testify against D;

- Zabed Ali
- Mere propensity 傾向 irrelevant
- Relevant to some other issues
> Rebutting the defence of framing / accident (i.e., unlikely that both colleagues,
without collusion, would try to frame D at the same time)
- Probative value?
> Unlikely that D was framed twice / same accident happening twice within a short
time
- Prejudicial effect (unfair impact)?
> Moral prejudice (conviction based on bad personhood)
> Reasoning prejudice (D’s defence rejected =/= D is guilty of the charge; one is
framing, one is not?)
- Assessing probative value and prejudicial effect

Was W called before D gave evidence or after D gave evidence?
- If before, why would W’s evidence be relevant at that time?
o Zabed Ali
o //The prosecution cannot credit the accused with fancy defences in order to
rebut them at the outset with some damning piece of prejudice//
- If after, would W’s evidence really be able to rebut D’s defence?
o What if D admitted having indecently molested W but maintained X framed
him?
o What if D said W framed him to?
 Complicating the trial
 If W did not frame D, so?
 If W did frame D, so?
- Difficult for Pros. to establish the probative value of admitting W’s evidence
- Single judge vs. Jury?

- Jury:
o Admissibility: Zabed Ali
o Jury directions: Lam Hing Chit; Kwok Hing Tony; Li Sui Heung
- Single judge:
o Guard against propensity reasoning by single judge in verdict: 趙偉強
- Does the judge still have judicial discretion to exclude such evidence after Zabed
Ali test is passed?
- It was not decided whether the judge still has a residual discretion to exclude the
evidence
o Balancing exercise between probative effect and prejudicial effect
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Zabed Ali
- (1) Matters in issue: (i) whether there was indecent touching, and (ii) whether X
had made up facts to frame D
- (2) Relevance of evidence of W’s allegation: similar fact > but seems like it’s mere
propensity?
- (3) If beyond mere propensity:
o The probative force of W’s evidence seems not so great;
o Distinguished from Lau Chun Kit that there was only one incident prior to
the one in the current case
o Reasoning prejudice: the fact that D committed IA against W does not mean
he also committed it against X
- Focus on the probative value – Modus operandi
EXAM STRUCTURE:
This question touches on the CL rule against mere propensity
- P cannot adduce evidence that D is likely to commit the offence of the similar
nature against PW1
- Permissible for P to adduce evidence to rebut a defence / issue raised by D
- Zabed Ali; Makin; Lau Chun Kit
(c) The trial magistrate erred in allowing the Prosecution to cross-examine D on the incident
in 2016; and
Stirland v DPP
//…Questions whether his former employer had suspected him of forgery were not any
challenge to the veracity of what he had said. Neither were they relevant as going to
disprove good character. The most virtuous may be suspected, and an unproved accusation
proves nothing against the accused, but the questions, while irrelevant both to the charge
which was being tried and to the issue of good character, were calculated to injure the
appellants in the eyes of the jury by suggesting that he had been in trouble before, and
were, therefore, not fair to him. They should not have been put, and if put, should have
been disallowed.//
Maxwell v DPP
Ng Fan Ying
- Cannot ask about previous bad personhood / charges but not convicted
- Past misconduct has to have good foundation
If can be asked …
- Can magistrate use the evidence as ‘propensity evidence’?
o NO – R v McLeod; Lau Ka Shing
- Must judges allow cross-examination of the conditions under s.54(1)(f) are
fulfilled?
o NO – Relevance (Maxwell; Stirland) and judicial discretion (R v Jenkins)
- Should judge allow cross-examination on previous similar conviction?
o Allow: HKSAR v Choi Lai Chu
- Does allegation (explicit / implicit) or PW lying amount to imputation of
characters?
o Yes – R v Britzman
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- Does allegation of police officers exercising violence, threat, inducement, coaching

etc., destroy bad character shield?
o Yes – HKSAR v Yue Wai Fat
CPO s.54(1)(f): only applicable when D chooses to testify
CPO s.54(1)(f): a person charged shall not be asked / if asked shall not be required to
answer, any question tending to show he has committed or been convicted of or been
charged with any offence other than the one he is then charged, or is of bad character;
subject to three exceptions:
CPO s.54(1)(f)
(i): previous conviction is admissible evidence to show that he is guilty of the offence
charged
(ii) D asked PW question with a view to establish his own good character, or has given
evidence of his good character, or the nature of conduct of the defence is such as to involve
imputations on the character of P / PW
- Does allegation that PW had collusion count? (perjurious?)
(iii) D gave evidence against co-D in the same proceedings
EXAM STRUCTURE:
1. This issue touches on bad character evidence.
2. Statutory bad character shield in s.54(1)(f) CPO
3. Go through 3 exceptions (2nd exception has 2 limbs)
4. Application
(d) The trial magistrate failed to give and apply good character directions when considering
D’s evidence.
Single judge v jury?
Jury: HKSAR v Siti Handayani (lacking credibility limb)
Single judge: R v Lai Lam Hing;
HKSAR v Hsu Ming Mei (lacking credibility limb);
R v Chung Siu Ping (lacking propensity limb)
Tang Siu Man:

- Vye direction is not a must
- Ultimate test is whether the summing up was fair and balanced
- When discreditable matters are revealed, large margin of assessment
Zheng Zhi Lang: When tried by a single magistrate

- They will usually remind themselves of the Berrada direction as to the credibility
of the D and less propensity to commit crime by a person of good character like D
- Sometimes the propensity limb is unnecessary e.g., strict liability offences
No prior record but discreditable materials
Zabed Ali (whether evidence admissible)

- (1) Identify matters in issue which P has to establish guilt
- (2) Ask how and why the evidence is relevant to the matters in issue
- (3) If answer to Q2 goes beyond mere propensity: apply DPP v P
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 Can use bad character to rebut an issue raised by D

- Test in DPP v P (whether evidence admissible)
o Whether its probative force in support of an allegation against the accused is
sufficiently great to make it just to admit it, notwithstanding that it is
prejudicial to the accused
- Good character directions
o Hong Kong position: Vye direction not a must (Tang Siu Man)
o Ultimate test is whether the summing up is fair and balanced
o Not necessary to give both limbs
Effects of good/bad character on non-D witnesses

- Bad: used to challenge W’s credibility
- Good: bolster credibility, but subject to the rule against bolstering credibility
- Cf. sometimes can be used beyond merely attacking credibility – similar fact
evidence (Kwong Wai Lun)
Rule against mere propensity vs. Bad character shield

- Rule against mere propensity: only prevent using bad character evidence to
establish propensity, but not to prevent credibility
- Bad character shield: applicable when D gives evidence
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Remember!
- Defence can lead propensity evidence against PWs, non-parties or even co-accused
- Co-accused: R v Randall
- Kong Wai Lun
o //35. Evidence that goes simply to credit must be distinguished from another
type of collateral evidence – similar fact evidence. Where the trial raises a
primary issue as to whether a police witness, or indeed anyone else, acted in a
particular way, the fact that he acted in the same way on another occasion may
render it more probable that he acted as alleged. Where it is the conduct of the
defendant himself that is in issue, special rules fall to be applied when
deciding whether relevant similar fact evidence should be admitted. These are
designed to protect the defendant against unfair prejudice. Where, however,
similar fact evidence is alleged against a PW similar principles apply to those
that apply to evidence as to credit, although the application of those principles
will not be identical.//
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Tutorial 8
Dickson has been charged with one count of robbery and one count of murder. The
prosecution case is that in the evening of 8th January 2021, the deceased, Viola, was walking
from the Yuen Long MTR station to her village house in Wong Choi Village which was about
800 metres away from the Station.
When Viola was walking along a village footpath with poor illumination, Dickson pointed a
knife at Viola, forcing her to surrender the diamond bracelet and money. Viola resisted and
Dickson stabbed her to death.
Viola’s body was found in the morning of 9th January 2021. No fingerprints of Dickson were
found on the folding knife killing Viola. Dickson was identified as one of the suspects. He
was arrested by the police in a village house on 12th January 2021.
The arresting officer found the following items while performing a house search:‐
(i) A handwritten receipt from a camping equipment store in Yuen Long dated 8th January
2021 showing a folding knife was sold by the camping equipment store at HK$150.00;
(ii) A diamond bracelet manufactured by Gigantic Molecular Diamond Ltd, with a serial
number of 31022018.
Dickson remained silent upon being arrested and it is not likely for him to testify in court.
The prosecution is prepared to be put to strict proof.
As the advising prosecutor of this case, you are now preparing the agenda for a conference
with the police officer‐in‐charge (“OC Case”). The OC Case sends you some queries by
email and he wishes to obtain your advice in the upcoming conference. In case you cannot
form an opinion on the questions raised, explain what other information you will need in
order to reach a conclusion.
a) The purchase of knife on the day of the robbery and murder could be an important piece of
circumstantial evidence to suggest the offences were premeditated. Can the piece of
handwritten receipt be admissible if it is adduced by the prosecution through the arresting
officer who retrieved the handwritten receipt from Dickson? Suggest a possible method to
make the fact mentioned on the handwritten receipt be admitted to the court as evidence?
- How to undermine the probative value?
o Who bought the knife? Was the knife bought the one used in the offence?
Mistakes?
o s.22B(3)
In estimating the weight, if any, to be attached to a statement admitted in evidence by
virtue of section 22 or 22A, regard shall be had to all the circumstances from which any
inference can reasonably be drawn as to the accuracy or otherwise of the statement and, in
particular—
(a)in the case of a statement falling within section 22, to the question whether or not the
person who supplied the information from which the record containing the statement was
compiled did so contemporaneously with the occurrence or existence of the facts dealt with
in that information, and to the question whether or not that person, or any person concerned
with compiling or keeping the record containing the statement, had any incentive to
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conceal or misrepresent the facts; and

(b)in the case of a statement falling within section 22A, to the question whether or not the
information which the information contained in the statement reproduces or is derived
from was supplied to the relevant computer, or recorded for the purpose of being supplied
to it, contemporaneously with the occurrence or existence of the facts dealt with in that
information, and to the question whether or not any person concerned with the supply of
information to that computer, or with the operation of that computer or any equipment by
means of which the document containing the statement was produced by it, had any
incentive to conceal or misrepresent the facts.
b) The police have been told that Gigantic Molecular Diamond Ltd maintains a computerised
customer relationship management system which records the items purchased by different
customers joining the loyalty programme with the serial number of the jewellery purchased
recorded.
If the prosecution wishes to use the data recorded by customer relationship management
system to show that the diamond bracelet retrieved from Dickson with the serial number of
31022018 was in fact purchased by Viola herself and therefore likely to be a property
belonging to Viola, will the computer record be a piece of admissible evidence to prove the
purchase by Viola?
Computer record of the bracelet serial number
- For evidence of fact stated therein? Yes
- Call the author of the record?
- s.22A EO
- Difference between s.22A(1) and (3)?
o In both sub-sections, the computer needs to be used to “store, process or
retrieve information for the purposes of any activities”.
o But in s.22A(1), a person who occupied a responsible position at the
material time during the activities must give evidence, proving that the
computer was working properly during the activities etc,; and that the
information on the document was derived from those supplied during the
activities.
o In s.22A(3), the person who occupied a responsible position at the material
time during the activities is unavailable; hence another person who is
familiar with computers can direct the production of the document at a later
stage (e.g., now) and prove that the computer was working properly etc,
when the document was produced.
- How to undermine the probative value?

o Require the computer person to attend court: s.22A(7)
 What guarantees the accuracy of the data when it was inputted?
 s.22B(3)(b)
- If statements (on a computer) not adduced for hearsay purpose: NO need s.22A!
(Lau Shing Chung Simon; Milne John)
o Need prima facie authentic: A reasonable jury is capable of regarding the
evidence as real (BRD)
- Are videos/photos captured by smartphones subjected to s.22A?
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o Chan Siu Tan - Authenticity: no need s.22A

 Approved by Milne John
o Fung Hoi Yeung - non hearsay purpose: no need s.22A
c) Assuming the court allows evidence in sub‐questions 1(a) and 1(b) to be used for the
hearsay purpose as proposed by the prosecution, for each of these pieces of evidence, suggest
one (1) possible way for the defence to undermine the probative value of the evidence to
prove the issue of guilt.
R v Khan (1990)
- Hearsay reform: hearsay evidence shall be admissible as long as it is “necessary”
and “reliable”
- “It is preferable to adopt a flexible approach to the admission of hearsay evidence
which meets the requirements of necessity and reliability rather than attempting to
expand the spontaneous declaration exception to the hearsay rule.”
o HK: Evidence (Amendment) Bill 2018 - the bill is dead (SLS)
o CFA has twice foreclosed change by common law: Hung Wai Yip; Wong
Wai Man
HKSAR v Lau Shing Chung Simon

Facts: Appellant convicted after trial of Common Assault against a Ms. Yau. His defence
was that he honestly believed Ms. Yau consented to his use of force as he was seeking to
rid her of a ghost at the time. In support of this defence, the Appellant’s Counsel sought to
admit as evidence records of “WhatsApp” messages exchanged between himself and Ms.
Yau prior to the alleged offence which showed Ms Yau had referred to a spirit that
possessed her and showed further that the Defendant could use reasonable force on her
when she appeared possessed.
Held: In allowing the appeal, the CFA held that the Magistrate ought to have admitted the
“WhatsApp” messages as the Appellant was seeking to rely on them to show that, whether
or not she actually consented, the “WhatsApp” messages caused him to believe that she
consented to limited force when she acted as if possessed.
 Therefore the common law rule against hearsay and the need to comply with s.22A
of Evidence Ordinance did not arise.
 As long as its contents are not relied on to prove a fact asserted, it will be
admissible if it tends to prove a fact in issue or a fact relevant to a fact in issue.
Can expert base their opinions on hearsay evidence?

- Textbook
- Another expert’s report
- Medical record/notes/diagnoses by another doctor
- Symptoms told by patient
- HKSAR v Li Cheung Choi
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Tutorial 9
Question 1
Background Facts
Donna (aged 21, a higher diploma student majoring in hospitality management) was charged with 1
count of common assault (“1st Charge”) and 1 count of possession of dangerous drug (“2nd
Charge”).
The Prosecution Case

The prosecution case is that at about 1930 hours on 1st July 2022, Donna was having the dinner
buffet with her friends as part of their staycation package in Hotel Iron in Mong Kok. A 5-year-old
boy, Teddy, spilled a scoop of ice cream on Donna’s dress when walking past Donna. Donna was
angry and she pushed Teddy towards the wall. Teddy fell on the floor and cried.
Teddy returned to his table and told his mother, Monica, that he was hit by a lady. Teddy brought
Monica to Donna’s table and told Monica that ‘she hit me.’ Monica asked Donna why Donna had to
treat a kid in a violent manner. Donna replied ‘Your son spilled ice cream on my new dress. How
could you let him run around the restaurant? When you did not bother to teach your kid, I will give
him a lesson. I am sorry for pushing him and making him fall on the floor, but it was for his own
good.’
Monica then called the police. The police officers arrived and cautioned Donna. Donna exercised
her right of silence. During a search on scene, the police officers found a packet of powder (which
was later to be confirmed to be 2.5g of powder containing 1.5 g of cocaine) in Donna’s handbag.
Donna continued to remain silent and was eventually arrested for common assault and possession of
dangerous drug.
After being brought to the police station, Donna was interviewed by the arresting officer WPC
3102. She told the arresting officer that ‘Yes, I got the packet of cocaine from a person known as Ah
Keung. It was a packet of free sample. Please give me a chance, Madam.’ In relation to the assault
of Teddy, Donna refused to say anything further.
The Defence Case

Donna admits that she did attack Teddy but she wishes to maintain the non‐guilty plea (and
therefore the prosecution will be put to strict proof in relation to the 1st Charge). In relation to the
2nd Charge, Donna does not dispute that she did make the confession statement to WPC 3102.
However, the confession statement was made in return for WPC 3102’s promise to Donna that if
Donna would admit the possession of drug, she would be released on bail and the police would not
lay charge against Donna for the alleged attack on Teddy. WPC 3102 did not keep her promise and
Donna was charged with both the 1st Charge and the 2nd Charge.
The case will be tried before a magistrate. The prosecution is going to call Monica as a prosecution
witness and to rely on her conversation with Donna to prove the commission of the 1st Charge by
Donna. For the 2nd Charge, the prosecution is going to rely on the confession statement made by
the Donna to WPC 3102.
Donna is going to remain silent at trial except that she will testify in relation to the voluntariness of
the confession statement. Comment on the admissibility issues of:
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(i) the conversation between Monica and Donna; and

(ii) the confession statement made by Donna to WPC 3102.
Question 2
In cases where:
(i) there are multiple co‐defendants; and
(ii) each of these defendants made a confession statement
the permitted use of these confession statements by different parties can be complicated and
confusing. Try to draw a table outlining all possible scenarios as to how these confession
statements can be used by different parties and support your answers
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Tutorial 10
Question 1
Your floormate of the hall, Desmond (a final year student majoring in Computer Science),
was arrested by the Customs and Excise Department. He has been charged with 1 count of
selling goods to which a forged trade mark was applied (contrary to ss 9(2) and 18(1) of the
Trade Descriptions Ordinance (Cap. 362) (“TDO”).
Prosecution Case
The prosecution case is that Desmond has been operating an online store selling computer
peripherals at discounted prices through his social media account on Instagram. On 23rd
September 2022, Customs Officer CO 1654 disguised as a potential buyer to approach
Desmond through Instagram and enquired about the price and condition of a newly released
optical mouse for eSports (“the eSports Mouse”).
Desmond told CO 1654 that he could sell the eSports Mouse at HK$200 (at the material time,
the recommended price of the eSports Mouse was HK$499). Desmond told CO 1654 that the
eSports Mouse was directly obtained from the manufacturer’s factory in Vietnam as ‘parallel
import’ without going through the distributor. CO 1654 eventually placed an order and
invited Desmond to deliver him the eSports Mouse in Kowloon Tong MTR Station at 1430
hours on 27th September 2022.
At about 1440 hours on 27th September 2022, Desmond delivered the Figure to CO 1654.
CO 1654 gave the marked money (at the amount of HK$200) to Desmond. Upon completion
of the transaction, at about 1445 hours on the same day, CO 1654 revealed his identity and
arrested Desmond.
The representative of Racer (AP) Limited, the registered owner of the Racer Trademark (as
appeared on the eSports Mouse), confirmed that the eSports Mouse sold by Desmond was not
a genuine product of his company.
Desmond exercised his right of silence after the arrest. No confession statement was taken.
Currently on bail pending trial, Desmond approached you for advice. He did not want to
disclose any details about the defence case. However, he was of the opinion that he was
charged solely because of the ‘incitement’ from CO 1654.
Advise whether Desmond can rely on this ground and ask the court to exclude the
prosecution evidence against him.
- Relevant
- Entrapment?
o Does it even count as entrapment?
o No – simply normal undercover operation; Desmond was going to sell the
product anyway
 Cf. custom officer [actively inciting] to commit a (new) crime
o e.g., for entrapment, remedy lies in prosecuting the inciter / disciplinary
actions / stay of proceedings (i.e., stop a legal proceeding)
 Usual grounds for stay: Impossible to have a fair trial
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- Suppose it is entrapment, is it possible to trigger judicial discretion?

o Is the probative value small …? – no: it is hugely probative
o Is it prejudicial? – no
o R v Looseley: right to fair trial violated if entrapment
o Right of silence: doesn’t make sense for undercover officer to caution
people
o Prejudice outweighs probative value …? – no
Question 2
On your last day of your mini-pupillage, you had a client conference with your pupil master
and his instructing solicitor. Your client, Ms. Tam (aged 56, School Principal of East Lantau
Primary School, a government secondary school) (“Tam”) has been charged with 3 counts of
accepting an advantage as a public servant, contrary to the Prevention of Bribery Ordinance
(Cap. 201). The prosecution has applied to transfer her case to the District Court and it is
likely that she will plead not guilty to all charges (and a trial hearing will be inevitable).
Prosecution Case
Between 16th September 2021 and 1st November 2021, Tam conducted various interviews
with the prospective pupils and their parents in her office.
Upon receiving complaints from other parents in about late September 2021, officers of the
Independent Commission Against Corruption, with the consent of the School Management
Committee and the Permanent Secretary for Education, installed video and audio recording
devices in Tam’s room.
However, permission to conduct the surveillance was not obtained from any panel judges and
authorized officers according to the Interception of Communications and Surveillance
Ordinance (Cap. 589).
In three of these interview sessions, Tam accepted various gifts from parents of prospective
pupils in return for guaranteed places for the primary 1 intake in school year 2022-2023.
Below is the list of gifts which Tam had allegedly received: -

Charge Date Item and Value
1 5th Oct 2021 A wristwatch (Value: HK$30,000)
2 10th Oct 2021 A pair of diamond earrings (Value: HK$25,000)
th
3 18 Oct 2021 200 Yellow W Supermarket Coupons, with the denomination
of HK$100 each (Value: HK$20,000)
On 30th August 2022, Tam was arrested by officers of the ICAC. She remained silent after
being arrested and was granted bail.
Defence Case
In the client conference, Tam appeared to be evasive and was unwilling to tell her solicitor
and counsel what her case was. However, she was quite dissatisfied with the means of the
ICAC officers to obtain evidence in her office. She was of opinion that the installation of
video and audio recording devices in her room was a breach of her constitutional right to
privacy.
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Advise whether Tam can seek to have the evidence of video and audio recordings
excluded.
- Relevant
- Violation of ICSO / breach of privacy is NOT automatically an exclusionary ground

o HKSAR v Muhammad Riaz Khan
 Evidence obtained in breach of D’s constitutional rights can
nevertheless be received if, upon a careful examination of the
circumstances, its reception:
 (i) is conducive to a fair trial
 (ii) is reconcilable with the respect due to the right or rights
concerned
 Rights of D’s privacy vs. Rights of innocent children (public
interest)
 (iii) Appears unlikely to encourage any future breaches of that right
or other rights
 Require Pros. to give solid evidence (e.g., real deterrence)
that there would not be future breaches (e.g., actual
disciplinary action of the concerned officials)
  The risk assessment called for under the 3rd element will always
be made by the courts, vigilantly, in the light of their up-to-date
experience
- Obtain ICSO authorization [retrospectively]?

o Then does that render the ICSO totally meaningless?
o Create big incentive for Pros. / law enforcement agency to commit the same
mistake again
- School management / Secretary for Education authorizing the installing of

surveillance?
o Consent obtained: Type 2 Surveillance under ICSO
o Argue: Principal does not have [exclusionary possession] to his office (i.e.,
ownership still lies at school management)
Extra Questions –
1. What exactly is involved in adultery proceedings and when they would arise
(divorce)? In EO s.11, does ‘parties to [adultery] proceedings’ refer to the ‘third party’
and their spouses? E.g., if my husband cheated on me, would this mean that the
husband of my husband’s mistress is competent to give evidence under s.11?
2. May I know if in any regard, the provisions of the CPO trumps EO s.11?
- s.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
- s.57 CPO Competence and compellability of accused’s spouse or former spouse
- s.10 EO
- s.54 CPO
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3. Is it correct to say that a co-D is competent and compellable to testify for/against D,

the relevant provision being EO s.5?
- NO
- A co-D is competent to give evidence (s.54 CPO), but not compellable to do so
(unless a co-D ceases to be a defendant when he pleads guilty / the charge is dropped)
o s.10: nothing in the EO will render a D compellable to give evidence
4. Under the ‘prior inconsistent statement’ exception of collateral finality rule set out
under EO s.14, it states that ‘the previous statement … is in writing or reduced into
writing’, is it a requirement that the ‘prior inconsistent statement’ must be reduced in
writing?
- YES (e.g., written witness statement; recorded and transcribed; transcripts; confession
reduced to writing signed by the confessor)
- Can still cross-examine a witness on prior ORAL inconsistent statement
o But collateral finality rule – cannot adduce further evidence to rebut his
evidence (e.g., call another witness to rebut the collateral issue)
o Can only have CLEAN AND CLEAR evidence (e.g., written) to rebut
5. Under EO s.14, it’s stated that ‘before such proof can be given, circumstances of the
supposed statement, sufficient to designate the particular occasion, must be mentioned
to the witnesses, and he must be asked whether or not he has made such statement’.
May I ask if this part referring to the ‘calling of witness’s attention’ in EO s.14?
- YES
6. If P were to use D1’s confession against D1, apart from directly proving guilt (i.e., for
hearsay purpose) (Lam Tai Ming), is it also permissible for P to use it as
circumstantial evidence to rebut D1’s defence, e.g., by drawing adverse inference (as
in SJRC, cited in Zhou Li Mei). If permissible, is this subject to the hearsay rule?
7. Could P use D1’s confession against D1 for a non-hearsay purpose, e.g., for proving
that joint alibis were false (Mawaz Khan)?
- NO – would mislead the jury to rely on D1’s confession to infer D’s guilt
Can the pros. use an involuntary confession against the maker even for non-hearsay purpose
(Lam Chi Ming)?
- NOOO.
Hearsay rule is only engaged when it is proposed that the alleged statement is TRUE (at the
outset).
- Implied assertions are still subject to the hearsay rule; but
o Owui Hengky: out-of-court statements can still serve as circumstantial
evidence
- Can use the out of court statement to INFER / lead to the conclusion that the
statement is true.
- E.g., can argue that in Kearley, the many phone calls are admissible as circumstantial
evidence
Is there a discretion to exclude defence evidence?

If yes, is the test the same as excluding prosecution evidence?
- R v Seaboyer [1991] 2 SCR 577
42

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AS asks you to perform research and resolve the following issues:‐

a. Will W be a competent and compellable witness for the prosecution?

NOT compellable – to give evidence for P (s.57(3) CPO)

b. Will W be a competent and compellable witness for the defence?

Extra: what if no longer liable to be convicted – trigger s.57(6) CPO

f. Is D a competent and compellable witness?

The Statement of Findings

> Why the ‘rape shield’?

Extra – R v Seaboyer (1991) 2 SCR 577

court had disbelieved in the witness); and

 Finality rule applies to collateral issues that merely go to credit –

Evidence that witness being disbelieved in previous court proceedings –

TWO THRESHOLD REQUIREMENT

19. I shall now turn to the analysis of the defence case.

HKSAR v Egan (2010)

21. Under cross‐examination, D agreed that:‐

(vii) he was holding nothing with his right hand;

- Liu Chenghao (2014)

- Not allowed to make certain arguments – grounds for appeal – depends on

I am a security guard working in the construction site managed by Sloppy Construction

- Windows were tinted

 What if the Turnbull guidelines were not given?

Step 2: Case authority – Turnbull

Step 3: Rationale – to avoid miscarriage of justice

Step 4: Application (1-2 marks)

Step 5: Wording of the direction – N/A for Turnbull questions

Step 6: Other potentially relevant matters

Credibility of the defendant is a material issue in the case (1)

Jim Fai / Liberato Direction

[When is the Liberato Direction necessary?]

[What if a lies direction is unnecessary given?]

 But before even considering directions … -

Step 5: Wording of the direction

Step 2: Case Authority: Lee Fuk Hing (1)

Step 3: Rationale: D has the right of silence

Step 4: Application: Identify whether magistrate has applied wrongly

Step 5: Other potentially relevant matters

What about non-complaint of police misconduct?

adverse inferences could be drawn from all the evidence).

HKSAR v Chan Chu Leung [2022] 5 HKLRD 448

o Liberato direction and lies directions are not mutually exclusive

Confidential communications / documents generated: -

(1b) between legal adviser, client, third party

 LPP and rules of evidence

 How can LPP be lost?

‘Confidential’ – (Three Rivers) ascertained by the intention of the parties, communications

‘Lawyers / legal advisers’

‘Lawyers / legal advisors’

‘Lawyers / legal advisors’

No waiver and no fraud exception.

 Documents created for the dominant purpose of seeking legal advice?

1st Type: LLP

‘Lawyers / legal advisors’

‘Lawyers / legal advisors’

 Drafts or attendance notes which contain evidence of the attesting witnesses on

 Waive of privilege by communication to a third party

 Can be overridden by statute (R v Special Comr of Income Tax)

Preparation for the Tutorial Session

HKSAR v McCall (2018)

What the defendant said Meaning of the sentence proposed by

3.2 Qualification of expert witness

- Suppose a lay witness says,

- Re Estate of Nina Kung (No.2) (2009)

- Why is it bad to admit ‘unnecessary’ opinion evidence?

 A failure to comply with procedures may render the evidence inadmissible

Real life examples:

Discrediting expert evidence?

 This ground of appeal does not have any merits

(b) The trial magistrate erred in allowing W to testify against D;

- Assessing probative value and prejudicial effect

- Single judge vs. Jury?

- Does allegation of police officers exercising violence, threat, inducement, coaching

CPO s.54(1)(f): only applicable when D chooses to testify

Tang Siu Man:

Zheng Zhi Lang: When tried by a single magistrate