PCLL Conversion Examination
June 2014
Examiner’s Comments
Criminal Procedure
Part A
Question 1.1
For this question students were expected to discuss applying for bail, bail
having been refused at the first appearance before the magistrate. Whilst most
students correctly stated that there was a presumption in favour of bail [see section 9D
of the CPO] and that a further application could be made to the magistrate at the next
appearance, many students omitted to mention the further very important procedure
that was available and that is an application to a Judge of the Court of First Instance in
accordance with section 9J of the CPO. Students were also expected to mention the
section 9G which effectively sets out the reasons why, despite the presumption in
section 9D, bail may be refused.
Whilst there were some poor attempts, there were a few very good answers, as
well, although most students fell somewhere between the two extremes.
Question 1.2
This question required students to firstly identify the likely venue for trial.
Many students referred Mo Kwong Sang v. R.1 which is the tariff case for some types
of robberies, and that case deals with some of the aggravating factors that will
increase the starting point for a sentence imposed after trial. Whilst the case does
deal with the situation where the offenders carry a weapon, such as a knife, it does not
deal with firearms. The fact that this was a robbery involving a group of men armed
with not only a flick knife but also a firearm [irrespective of whether it was a genuine
or imitation firearm, were further aggravating factors, which took this case out of the
realm of the District Court [where the maximum sentence is 7 years imprisonment]
and into the jurisdiction of the Court of First Instance. Whilst some of those students
who correctly identified the probable venue as the Court of First Instance, some did
not say why that should be the position, and although others referred to committal
proceedings, the accurate answer to the question was that the prosecution would
probably apply for the fixing of a return day. In order to answer the question it was
not essential to detail what was likely occur on the return day, several students did
helpfully provide that detail. It was expected also, that students would identify
section 80A of the Magistrates Ordinance, as the provision relating to the fixing of a
return day.
Question 1.3
This question was generally poorly answered. It dealt with the joint trial of
offenders charged with the same offence and students were expected to discuss the
voluntary bill procedure which is provided for in section 24A(1)(b) of the CPO.
Section 24B is the provision that authorizes the joint trial of individuals charged with
the same offence. Whilst most students recognized that it was desirable to have a joint
trial, not many students mentioned the voluntary bill procedure and some of those
1
[1981] HKLR 610.
1
who knew there was a provision were unable to recall the section or locate it in their
notes.
Question 1.4
To answer this question students were required to have a thorough knowledge of
a number of sections of the CPO relating to appeals, including sections 82, 83, 83A,
83E, 83I, 83Q, and 83W. Fortunately, the first part of the question did not attract
many marks, as most students were unable to answer it correctly. I am here referring
to the time limit for filing an appeal. A number of students were able to correctly state
that the date for appealing against conviction was 28 days after the conviction was
imposed, or where the sentence was imposed more than 7 days after the date of
conviction, then the 28 day period for appealing against conviction ran from the date
of sentence. Most students missed the proviso in section 83Q(2) the affect of which
was that if the sentence was passed within 7 days of conviction, then the time limit for
appealing against the sentence only, ran from the date of sentence, but the time limit
for appealing against the conviction remained at 28 days from the date of conviction.
Accordingly, the correct last dates for appealing, on the factual scenario contained in
the question, were 2 June for conviction and 6 June for sentence.
Most students were able to provide at least some of the orders that the court could
make depending upon whether the conviction and sentence appeals were dismissed or
allowed.
In summary, in respect of the conviction appeal, the Court may dismiss the
appeal, allow the appeal and set aside the conviction, allow the appeal and substitute a
conviction on another charge or allow the appeal and order a retrial [see sections 82,
83, 83A and 83E]. If the conviction appeal is allowed and a conviction for another
offence is not substituted, then the sentence appeal falls away. If a conviction for
another offence is substituted, then the Court will impose a sentence for the new
offence.
In regard to the sentence appeal, where the conviction appeal is dismissed the
court may also dismiss the sentence appeal or dismiss the appeal and order loss of
time, or where the sentence appeal is allowed, replace the original sentence with the
sentence the court considers to be appropriate [see sections 83I and 83W.]
Part B
Question 2
The majority of students answered this question correctly, and most students
provided information concerning the procedure for reviewing orders made by a
magistrate, in accordance with section 104 of the Magistrates Ordinance.
Despite the facts, which indicated that the client did not wish to go to the
expense of appealing, some students insisted on discussing the appeal process.
Question 3
Most students were able to answer this question correctly.
To answer this question it was necessary for students to appreciate that there
was not actual statutory definition of summary offence, but that offences that were not
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indictable offences [which are defined in section 14A of the CPO] were summary
offences. In short, summary offence is a minor offence, which is not an indictable
offence. By reference to section 14A, an indictable offence is an offence where the
offence creating provision contains the words upon indictment or on indictment. If
such words do not appear in the section, then the offence is a summary offence which
must be heard in the Magistrates Court, unless it is transferred to the District Court
together with an indictable offence, in accordance with section 88(1)(b) of Cap. 227].
A summary offence cannot be heard in the Court of First Instance, although
some students suggested that section 79F of the Cap. 221 allows for certain summary
offences of sexual abuse or assault to be transferred to the Court of First Instance.
Firstly, there are in fact no offences within this category that are summary offences2,
and secondly, the reference in the section is not to summary offences but offences that
may be tried summarily i.e. either way offences, which are usually regarded as
indictable offences [because they may also be tried on indictment]. As this provision
is a little confusing because of the unhelpful manner in which it was drafted, and in
order to be fair to all students, all examiners adopted the practice of not penalizing
students who mentioned section 79F and also not allowing additional credit for those
who did mention the section.
Question 4
Most students did well in answering this question, which required them to
mention the procedure under section 79B of the CPO, relating to witnesses in fear and
mentally incapacitated witnesses who may be adults or children.
Conclusion
Apart from studying the prescribed material, I would again emphasise the
benefits to be gained from perusal of past examination papers; that said, I do
appreciate that one or two of the topics on this paper had not been covered previously,
and that was intended to ensure that students had covered the material.
2
Note that the most minor assault is common assault, contrary to section 40 of the Offences
against the Person Ordinance, Cap. 212, and even that offence may be dealt with either way.
3