Exercise One

Purpose: to get used to a criminal case file

Read Jeff Sham file and answer the following questions:

1. There are typically three sections to a criminal litigation file, what are they and what documents are usually found in each section?

- Case papers
o Charge sheet
o Brief facts
o Police statement / report
o Police record of interview – interview w/ PW and D
o Medical report
o Client instructions
o Proof of evidence by witness
- Correspondences: email & faxes
o File note
o Reasons for verdict / sentence
o Election to give evidence by client defendant
o Correspondences w/ Prosecution
 asking for ONE bind over
o Correspondences w/ officer in charge
o Correspondences with client, court, counsel, experts, witness, TP
o Admitted facts
o Retainers
- Miscellaneous
o Research chart
o P’s trial chart
o D’s trial chart

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 o Disbursements
o Time records
2. What is the purpose of the order of documents?

- In reverse chronological order  latest correspondence at the first

- So newest documents can be added on top, know right away what is the latest position

3. What are the documents at pages 40 and 46-49? Their purpose is obvious but where does it stipulate that they are a necessary requirement in
law?

p.41: confirmation letter to confirm client is aware of his options and has been advised regarding merits of the case
- To protect legal team of any accusations of wrongful doings
- As a matter of good practice

p.47-50: retainer letter

- Sets out terms and conditions of retaining the legal team (including legal fee structure)
- rule 5D, Solicitors’ Practice Rules (Cap. 159H)
- when to obtain retainer letter: as soon as practicable, no more than 7 days after receiving instructions

4. What is the document at page 33? Why would Counsel want the Client to sign such a document? What would the risk be for Counsel if the
client did not sign it? At what stage of the proceedings would the client typically sign it? What else might such a form be used for?

Election to give evidence: to confirm client elects to give evidence in court, and is aware of the risk to be cross-examined by prosecution
- Risk if X sign: counsel face accusations by client if things do not go well
- Will typically sign before taking of plea or before pre-trial review
o Tutor: timing is after prosecution’s case
- Another situation that u would need client’s writing to confirm a particular issue
o When you advised client to adduce some evidence, and client [does / does not] adduce the evidence
 Eg medical report

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5. What documents should Able Sol (trainee sol) have taken with him to the police station?

- ID card, law society membership card / bar association card

- A notebook
- Barrister: Brief from the instructing solicitor; Solicitor: letter of authorization and law society card; Clerk: authorization by firm
- Copy of letter of retainer (not technically required; 7-day grace period)
- Polaroid camera (if there is complaint against police beating client)

6. Could the police have refused Able access to his client? If so, what could he do about it?

- Yes if the case is serious

- Able should:
o note the time of delay in seeing his clients + reasons for refusal + officer who refused access
o look for a more senior officer (duty officer)
o Investigate whether refusal constitutes unnecessary obstruction (Rule 8, R&D)
 “A police officer may only delay or prevent communication between a solicitor or barrister and a person in custody, or
present with the police and under investigation by them, if he has reasonable grounds for believing that unreasonable
delay; or hindrance to the processes of investigation or to the administration of justice, is likely to be caused if such
communication is permitted.”

7. Look at the attendance notes in the Jeff Sham file at pages 45 and 46 and assess Able Sol’s advice with regard to police and court bail. Why do
you think the police refused bail? What do you think about Able’s advice to Jeff on court bail? Should Counsel have added anything or clarified
Able’s advice? On what grounds may bail be refused by the court? What factors can the Magistrate consider in deciding whether to grant or
refuse bail? Is the Prosecution likely to oppose bail for Jeff? What further instructions should Able take from Jeff in preparation for a bail
application to the court being made? Is Jeff likely to obtain bail on his first appearance in court and if so, what likely conditions would be
attached?

Question Answer
Why police refuse bail Seriousness of offence (wounding – max sentencing is 3 years)
How is Able’s advice to Jeff on Able’s advice: 100% chance of getting bail, has excellent job and strong community ties
court bail
My comments:

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 - There is no 100%, client may accuse him of being misleading
- Reasons for refusal of bail does not have to related to his job / community ties – can be failure to pay cash bail

Never give the client 100% guarantee (use the words like “decent chance”; qualify the phrasing that “finally it
is up to the court to decide”) (don’t get the client’s hope too high)

Prolly an ethical problem  potentially breach principle 7.1 of solicitor’s guide to professional conduct - breach duty
of openness and fairness to client – duty to act competently (principle 6.01)

Should have told clients wt are the potential grounds of refusing bail
Anything for counsel to add on *counsel did not add anything on bail
Able’s advice?
Beware of what the clerk says (clerk is not subject to law society’s disciplinary action); correct what the clerk says that
is clearly false

Counsel’s duty to act competently (para 1.1(d))

10.3(a) – duty of counsel not to compromise professional standard
10.13 – duty of counsel to lay client
10.17 – counsel should not be mere mouthpiece to instructing solicitor
On what grounds may bail be s.9D CPO: there is a presumption in favor of granting bail
refused by the court?
s.9G CPO: there are substantial grounds for believing:
a) Fail to surrender to custody
b) Commit an offence while on bail, or
c) Interfere w/ witness or obstruct course of justice

Factors: D has breached a bail condition or previously failed to surrender to bail, etc

Wt factors for mag to consider s.9G(2)-(9) CPO:

when deciding bail
- Nature / seriousness of offence, likely sentence if convicted
- Behaviour, demeanour and conduct of D
- Employment, community ties, financial position of D

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 o Stable employment and strong community ties (family in HK) = low flight risk
o Financial position is double-edged sword: can afford high cash bail vs ability to abscond
- Health and age of D
- **History of previous admissions to bail (previously absconded in the past? Committed offence while on
bail?)
- Previous convictions of D
- Nature / weight of evidence against D (strength of P’s case) (D might abscond if he knows P has a strong case)

Is the Prosecution likely to oppose Not likely if stringent bail conditions were attached
bail for Jeff
What further instructions should Further personal details
Able take from Jeff in preparing - Travel documents?
bail application - Surety?
- Which police station to report to + date + frequency?
Is Jeff likely to obtain bail on his Conditions: cash bail, reporting to police station, undertaking not to interfere directly or indirectly w/ PW and not to
first appearance in court and if so, go to the premise where offence occurred, to reside in the given address (but this is for domestic violence)
What likely conditions would be
attached?

8. What documents, if any, should a detainee have been given by the police?

- Notice to persons in custody (Pol.153)

- List of law firm directory
- Charge sheet / brief facts (if any)
- Copy of record of interview

9. Was Able’s approach to the issue of fees on page 46 appropriate or not?

Able’s approach:
- cannot give exact estimate for now, will be a step by step approach (don’t want to tie yourself in with a fixed fee)
- 15000 deposit collected from D’s wife
- Should also let D know range of fees for upcoming steps
- Should mention duty lawyer service and legal aid

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Should client sign rule 5d?
- Yes, to let client know fee structure and practice of the firm

 Yes
 Able informed the client that the full fees cannot be calculated at this stage of the litigation but have Sham sign the letter of the retainer,
and showed him the general fees for the counsel and solicitor.
 Able explained that costs would be taken step by step at different stages of the litigation as the costs that is incurred by the parties would
be different at various stages of the proceedings would be different. Therefore, a total cost is only available at the end of the litigation.
For each item or task, the solicitor would record the amount of time that was incurred.
 Able was correct to advise that the client has a right to receive legal aid if the trial proceeds to the District Court or the Court of First
Instance, subject to a means test. Duty Lawyer is only available at the Magistrates Courts.

10. What would you say is the aim of a first interview at the police station?

- Show compassion and the human side of the profession; try to comfort them and show you are acting in their interest
-

- To advice client not to say anything – right to silence

- To confirm retainer w/ client
- To understand brief facts, background of client, charge and whether police bail will be granted
- To see if there are any complaints against police for mistreatment on arrest and during stay in police station
o whether client needs medical attention
- advice client on follow-up actions
- talk to OC to see whether police bail will be granted

- will not seek detailed defence now – no witness statement, no complete background to the case

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11. What is another name for the document at pages 18-19? What is its purpose and who would use it? The drafting of this document is often
given to paralegals and trainee solicitors. If this document is to be of use, what would you consider are the key criteria to include in terms of
content and format? Would this document ever be passed to the Prosecution or the court?

proof of evidence: A Proof of Evidence is a written summary of what a witness will say in evidence during a hearing.
- Usually drafted by a trainee or clerk; then have a client conference so that the client can confirm the contents of the proof of evidence.
- Do not use legalese

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Exercise Two
1. Research chart on Jeff Sham file
RESEARCH CHART

Reasons for research: Prepare for Jeff Sham’s appeal

Research undertaken by: Abel Sol Date of research:

Charge(s) Elements of the Classification: Maximum sentence Leading Usual defences Possible
section / Cap. offence(s) summary / / tariff / guidelines / Cases alternative
No indictable / likely sentence charges
triable either
way / dual?
Wounding AR: Indictable Max: 3 years Self defence Common assault
s.19 Offences - Evidential burden on D (s.40) (1 year
Against the - Unlawfully Is triable Realistic sentence: - Prosecution to disprove imprisonment)
Persons - Either wounds summarily by 1-2 month(s) - Force used must not be
Ordinance or inflicts Mag (not in excessive (reasonable and Assault
(Cap. 212) (breaking of Part 1 Sch2 of It is an excepted proportionate) occasioning
-unlawfully or continuity of Mag Ord) offence, so no actual bodily
maliciously skin) (ie, a suspected - When medical evidence harm (s.39, cap
wounding cut) Likely in a sentence. reveals that there is no 212) (3 year
- Any grievous Mag Ct. break in the continuity of imprisonment)
bodily harm See: Schedule 3 of skin
upon any other the Criminal Wounding w/
person Procedure Crime prevention (s.101A CPO) intent to cause
- w/ or w/o Ordinance for GBH (s.17) (life
weapon or excepted offence Duress by circumstances imprisonment)
instrument - w/ intent
Intoxication (only for crimes of = need

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 MR: specific intent; malicious wounding not be
- Maliciously: is crime of basic intent: Tang Ho reckless
intending or Cho DCCC 724/2014)
being reckless
as to cause
some physical
harm
- The gravity of
such a harm
need not be
intended /
foreseen (R v
Mowatt [1968]
1 QB 421).
The AR and
MR need not
coincide.

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2. Draft letter of advice as Able So to D (in response to D’s letter on p.38, dated 27 Aug) (2-3 pages)

 Should include bullet point summary of issues to deal with

Don’t mention suspended sentence in the letter of advice to client – do mention wt kind of sentence client will get
Don’t mention the maximum sentence

If I was to plead guilty to the charge of wounding what is the likely sentence?
- Max sentencing of 3 years
- What factors to take into consideration
o Influenced by alcohol
o Was the first to punch victim
o Some provocation by victim

If I were to plead guilty before trial would I get a lighter sentence?

- Yes there will be a sentencing discount
- If PG on plea day, will get 1/3 discount

Yes
- Need not quote case law
- Have to explain the principles

Would I have to wait until 5th September 2023 before I could plead guilty?  no
- 5 sept 2023 = date of first hearing
- Could plead guilty at mentions hearing
o But mentions hearing already passed and client PNG  the next opportunity to PG is at first hearing

Would I have to go to court 4?  no

- Client would have to be physically present in Court 4 for first appearance

Can I not plead guilty to wounding but offer to plead guilty to AOABH, even though P won't accept?

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 - P may charge a lesser offence (s.51 CPO)
- Mag may amend the charge if no injustice would be caused (possibly to a lesser offence) (s.27 MO)
- Defendant may offer to PG to a lesser charge (write letter to P) (plea negotiations)
- If Prosecution still does not accept PG to AOABH and charge wounding  client may still PG to wounding

What are the possible outcomes?

Yes he can
Consequence
If PG, pg must be consistent w/ his defence theory

1. be convicted of the offence charged (in which case his guilty plea to the lesser offence is of no effect as having been rejected by the
Prosecution, it is treated as a nullity: HKSAR v. Lee Wai Keung
2. be acquitted of the original charge but convicted of the lesser alternative charge as a result of the provisions of s. 51(2) CPO. This
conviction must be because the evidence put forward by the Prosecution at trial has proved beyond reasonable doubt that the Defendant
is guilty of the lesser alternative charge and not on the basis of his earlier guilty plea.
a. D may seek reduction in sentencing. Factors: (Ngo Van Nam)
i. whether the guilty plea was made at the first available opportunity
ii. whether the plea was entered clearly and unequivocally
iii. whether the Defendant had maintained his position throughout the duration of the trial (e.g. did not run a variety of
defences inconsistent with the guilty plea)

If PG AOABH, PNG wounding

- And if P fails to prove both charges  can client still be convicted of AOABH?; or
- If at last convicted of wounding  entitled to any discounts? 1/3? ‘

Tutor: do read this case Lam kai mai [2020] 4 HKLRD 107

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3. Research chart on Willy Ma file

- A charge of indecent assault, s.122 CO

RESEARCH CHART

Reasons for research:

Research undertaken by: Date of research:

Charge(s) Elements of the offence(s) Classification: Maximum sentence / Leading Cases Usual defences Possible
section / Cap. summary / tariff / guidelines / alternative
No indictable / likely sentence charges
triable either
way / dual?
Indecent AR: On indictment Max: 10 years Fine is not Consent Common assault
assault - Commits an appropriate (s.40, OAPO) (1
(contrary to, assault Is triable CFI: can Not indecent year)
s.122, Crimes o Intentional summarily by DC: can Usual sentencing: according to
Ordinance) - In the mag (not in MC: no? 14-28 days for sb w/ objective AOAHB (s.39,
circumstances is part 1 sch 2 of clear record standards of right- OAPO) (3 years)
being capable of MO) On the facts, should minded ppl 
being considered stay with the District Second offence: 2-6 accidental
by a right-minded Usual venue: Court? months (AG v Wai
person as MC yan shun)
indecent; or is
inherently or AG v Ng sai man
unambiguously
indecent R v Court

- Intended for it to R v George

be indecent - Whether
removal of
shoe from

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 girl’s foot is
indecent

HKSAR v Fak Ka
Shing [2013]

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Exercise Three (2-3 pages)
Bullet point list of points to ask Willy Ma in order to explore possibilities of ONE Bind Over from Prosecution

Client background
- Name
- Age
- Education
- Occupation

Regarding the charge

Circumstances of the offence

Bind over = Undertaking by D to court not to commit a certain act in the future, w/o revealing defence

ONE = offers no evidence

Defence writes a letter to offer ONE Bind Over

If P does not object  court has a discretion
If bind over is unsuccessful  have to ask wt client’s plea is (PG? PNG?)

If Bind over  client has to agree to brief facts in open court

- If client does not agree, can try to ask P to amend the facts (be careful not to ask too much)

Go through bind over word by word

Consider language used in bind over: victim vs complainant; Mr. Sham vs defendant

Don’t reveal defence in the bind over

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Don’t write things that will undermine client’s case
Be persuasive – argue why bind over is appropriate and should be given

Client Interview

- 42 yo
- Study to form 6; in Aberdeen; left school at 17
- Studied part-time to get nursing qualification
- Went to PolyU; and grad as a nursing course
- Beauty masseuse (@ You Beauty in Mong Kok) during uni program
- Later, male nurse @ Queen Mary Hospital, been working there since
- Loving relationship w GF (Emma Chiu; she works at Green Goose Bar)
- Client lives w parents to save money; is only child
- Father 60, civil servant, retired
- Mother 66, accountant, retired
- 29,000$ per month
- Don’t have criminal record, no previous conviction; voluntary work in the
community and the local church (does it few times a month) (regularly goes
to church)
- 5k dollars given to parents
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 - 56k in saving
- With a conviction, cannot work as a nurse, will be fired immediately.
o Sarah (head nurse) was considering promoting client as senior staff
nurse;
o Served the public for 21 years, don’t want to throw that all away.
o Could consider changing to a different department
- Willing to see a psychiatrist if necessary and makes a difference.

Incident

- Shopping in Mong Kok, on her way to Wan Chai

- GF got off work at 11 pm (?)
- When got to TST station, saw two young girls getting onto train. One was
pretty, wearing a bright pink mask. They stood in front of Client. As client
was observing her, it occurred to client that the ears were beautiful, and
client could not resist the temptation to stroke the ear with his right hand.
o Pure impulse. Nothing sexual. Never been in trouble w police before.
- Client observed: Victim looked very upset
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 - Client could not quite rmb what he said afterwards
- When police came, client denied the offence, hoping that police would just let
him go away
- Officers were nice, kept at the station for a few hours, no complaint against
police, bail at 1000 HKD.
- No major health problem, no visit to psychiatrist.

Client’s instruction
- Wish for a ONE bind-over.
- Willing to apologise but not putting himself out as the bad guy
- 10,000 HKD willing to give as compensation

Play it safe, will get many marks off if something irrelevant is put in.

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