LLAW3099 Criminal Procedure

LLAW3099 Criminal Procedure

Chapter 3: Role of Legal Representatives during Investigation

Learning objectives
1. Role of legal representatives during investigation process;
2. General powers of different law investigating authorities*;
3. Treatment and interviewing of Arrested Persons and other processes in the facilities of
investigating authority;
4. Bail/remand in the custody of investigating authorities prior to first appearance in Court;
5. Effects where Accused and/or Legal representatives refuse to co-operate;
6. Effects where Accused’s rights are violated

1. Role of legal representatives during investigation process

1.1 A barrister cannot act in a professional capacity without the Bar Code Para 5.16
instructions of a solicitor.

1.2 It is important to bear in mind the following principles:

- Right not to be subjected to arbitrary or unlawful search of HKBORO art.5
the body, arrest, restriction of freedom
- Right not to be subjected to arbitrary or unlawful search of HKBORO art.14
homes or premises
- Presumption of innocence
- Burden of proof lies on the prosecution
- Right to remain silent Cf. POBO s.14
- Right to legal assistance

2. General powers of different law investigating authorities*

POLICE
2.1 Power to stop and search

A police officer has power to stop and search a person without PFO ss.54(1), (2)
warrant. (NB there is no requirement that the police officer must wear
a uniform.)

PFO s.54(1)
- Basis: “finds any person… who acts in a suspicious manner”
o Subject test based on objective facts; must provide *Wong Tze Yam v
evidence to support judgment that the person was Commissioner of
acting in a suspicious manner Police (CFI)
- Powers:
o Stop the person to produce proof of identity for
inspection
o Detain for a reasonable period while the police
officer inquires
o Search for anything that may present a danger to the
police officer and detain that person for a reasonable
period for the search

PFO s.54(2)
- Basis: “finds any person… whom he reasonably suspects of Wong Tze Yam v
having committed or of being about to commit or intending to Commissioner of
commit any offence” Police (CFI)

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o Objective test to support the reasonableness of the

suspicion
- Powers:
o Stop the person to produce proof of identity for
inspection
o Detain for a reasonable period while the police
officer inquires
o Search for anything that is likely to be of value to the
investigation of any offence that the person has
committed, or is reasonably suspected of having
committed or of being about to commit or of
intending to commit [MORE INVASIVE THAN
PFO S.54(1)]

Searches must be conducted by officers of the same gender. PGO 44-05, Notes
- “In as polite a manner as possible and with the preservation p.83
of the dignity of the subject of the search paramount”
- No wall search or observation thereof by opposite sex;
removing of clothing done by same sex and in privacy and
shall be conducted with prior approval from specific rank
- Notebook entry on PGO 53-01

A police officer can stop, search and detain any vessel, boat, etc. or PFO s.55
person reasonably suspected of conveying anything stolen or
unlawfully obtained.

Other bases for stop and search include:

- POO s.33(6), related to possession of offensive weapon in Notes p.84
public space
- OAPO s.56, related to apprehension of person loitering at
night and suspected of indictable offence

Authorized officers, including police officer, immigration officer, etc. IO s.17C, Notes p.85
can demand any person to produce proof of identity as of right. IO s.17D
- Power to arrest without warrant for failure to produce for
inspection on demand proof of his identity

2.2 Power of entry, search and seizure with(out) a warrant

A police officer has power to enter and search a premises PFO s.50, Notes
WITHOUT warrant. pp.87-88
- Basis:
o “has reason to believe that any person to be arrested PFO s.50(3)
has entered into or is in any place the person residing
in or in charge of such place”
- Power:
o “on demand of police officer… allow him free PFO s.50(3)
ingress… and afford all reasonable facilities for
search”
o If demand of admittance was refused, and a warrant PFO s.50(4)
could not be obtained in time “without affording the
person to be arrested an opportunity to escape” =>
can break open outer or inner door or window
o Lawful to search for and seize any article or chattel PFO s.50(6)
that may be of value to investigation of the offence

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that the arrested person has committed or is

reasonably suspected of having committed

A police officer may also be granted the power of entry, search and PFO s.50(7)
seizure WITH a court warrant.
- Basis:
o Magistrate may issue a warrant when “there is See also Notes p.89
reasonable cause to suspect…” that there is
something of value to the investigation of an offence
that has been committed / is reasonably suspected to
have been committed / about to be committed /
intended to be committed [MUCH WIDER THAN
PFO S.50(3)]
- Power:
o To enter and if necessary to break into or forcibly Cf. PFO s.50(4)
enter the premises, to search for and take possession
of any chattel / article
o To detain the person who may appear to have such
article or chattel in his possession / under his control
- Extra guidelines on the PGO: PGO 44-04
o Shall not enter unless he is legally empowered or has
the consent from the owner / occupier
o Should record on the official notebook and ask the
person who gave consent to sign on the entry
o Should declare his identity, state the purpose of the
search, produce the warrant (if any)
o Ensure the owner / occupier be informed of the list of
items seized
o …
- Items seized are to be disposed of upon application by
Prosecution after the criminal proceedings

2.3 Power of arrest

An arrest occurs when when a police officer: Hussein v Chong

- states that he is arresting or when he uses force to restrain the Fook Kam, *Yeung
individual May Wan v
- by words or by conduct makes it clear that he will use force HKSAR
to prevent individual from going where he may want to go
- Cf. stopping an individual to make inquiries

A police officer has a general power of arrest WITHOUT warrant.

- Basis:
o “Reasonably believes will be charged with or whom PFO s.50(1), Yeung
he reasonably suspects of being guilty of…” May Wan
o “any offence for which sentence is fixed by law or PFO s.50(1)(a)
may be sentenced to imprisonment” or
o “any offence when service of summons is PFO s.50(1)(b)
impracticable because” e.g. reasonable ground to
doubt whether the person provided a real name
o May arrest WITHOUT any warrant and whether or PFO s.50(1A)
not he has seen any offence committed
o *Yeung May Wan:
 Should have formed the genuine suspicion at
the time of arrest

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 Reasonable suspicion might be based on See also PFO

hearsay provided that the suspicion was s.50(1A)
reasonable in the eyes of an objective
observer
 Test of reasonable cause to suspect – a fact of
degree but as high as a prima facie case

A person may also be arrested by a police officer WITH a warrant for MO ss.9, 10, 18A,
arrest has been issued by a judge or magistrate. 31, 72-74
- Basis:
o “notwithstanding that the warrant is not in his PFO s.53
possession at the time”

Anyone who is arrest shall be informed, at the time of arrest, of the HKBORO art.5(2)
reasons for his arrest and shall be promptly informed of any charges
against him.
- Police officer should have “reasonable suspicion” and *Leung Kwok
“inform the arrested person there and then of the reasons for Hung v SJ
his arrest”
- In “simple, non-technical language… the essential legal and
factual grounds for his arrest”
- Exceptions:
o Person already aware of reasons of arrest HKSAR v Ip Kenneth
o Person was resisting arrest and so it was hard to
inform him of the reason
o Person does not speak the language
- Unlawful arrest can be cured once valid reasons are given *Leung Kwok
Hung v SJ
Unlawful arrest does not deprive the court from trying the accused.

In effecting an arrest, the person may use force.

- Reasonable force in the circumstances in the prevent of crime CPO s.101A
or in effecting or assisting in the lawful arrest of offenders or
suspected offenders
- All means necessary to effect arrest if the person forcibly PFO s.50(2)
resists the endeavor to arrest him or attempts to evade the
arrest under PFO s.50(1), (1B)
- Resisting a lawful arrest / assault a police officer => OAPO
s.36 charge; PFO s.63

2.4 Power of detention

The person being arrested should be delivered into custody of the PFO s.51
officer in charge forthwith.
- Forthwith does not mean immediately when there is good HKSAR v Yeung
reason for the delay Ka-yee
- Options afterwards:
o Release
o On police bail
o Charged or kept in police custody and brought before PFO s.52
a magistrate within 48 or at most 72 hours

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2.5 Power in relation to traffic offences

A person who is driving on a road shall stop when required by a RTO s.60
police officer in uniform, or traffic warden in uniform. Otherwise he
would commit an offence.

A police officer may require the production of the driving licence, e.g. RTO s.43
when the person is driving on a road.

A police officer in uniform may require a specimen of breath for a RTO s.39B
screening breath test, e.g. from a person who is driving or attempting
to drive, or is in charge of, a motor vehicle on a road.
- Shall be warned that failure to provide a specimen would lead RTO s.39B(5)
to prosecution
- May arrest without warrant when proportion of alcohol RTO s.39B(9)
exceeds prescribed limit / he has failed to provide a specimen
- May require additional specimens RTO s.39C
- May be charged under RTO s.39B(6) and/or s.39C(15)

A police officer may run a drug test. RTO s.39M, Notes

- Refusal would be an offence under RTO s.39O p.102
- Or charged with obstruction of police officer under RTO s.62

Registered owner of a vehicle and the person suspected of being the RTO s.63
driver of a vehicle may be compelled to give information.
- Refusal would amount to an offence under RTO s.63(6)

CITIZEN’S POWER OF ARREST

2.6 Any citizen may arrest without warrant whom he suspects of being CPO s.101,
guilty of an arrestable offence. HKSAR v Ip
- Arrestable offence: “an offence for which the sentence is Kenneth
fixed by law or for which a person may under or by virtue of
any law be sentenced to imprisonment for a term exceeding IGCO s.3
12 months, and an attempt to commit any such offence”
- Use of reasonable force in the prevention of crime / effecting CPO s.101A
or assisting in the lawful arrest of offenders or suspected
offenders

Any citizen may exercise the power of arrest for breach of peace. HKSAR v Chow
- Breach of peace: “harm is actually done or is likely to be Nok Hang
done to a person or in his presence to his property or a person
is in fear of being so harmed through an assault, an affray, a
riot, unlawful assembly or other disturbance”
- Where the harm is anticipated, there must be a real risk of
such imminent harm

COVERT SURVEILLANCE
2.7 Fundamental rights in conflict with covert surveillance:
- Protection of privacy, family, home, correspondence, honour HKBORO art.14
and reputation
- Freedom and privacy of communication BL art.30

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Covert surveillance is regulated under the Interception of

Communications and Surveillance Ordinance (ICSO).
- Interception product shall not be admissible other than to ICSO s.61
prove that a relevant offence has been committed
- Information protected by legal professional privilege is to ICSO s.62
remain privileged

3. Treatment and interviewing of Arrested Persons and other processes in the facilities of
investigating authority
3.1 It is important to take note of the fundamental rights of the accused:
- Shall be treated with humanity and with respect for inherent HKBORO art.6
dignity
- Be entitled to adequate time and facilities for preparation of his HKBORO art.11
defence and to communicate with own counsel
- Not be compelled to testify against himself or to confess guilt

3.2 The process and detention of persons in police custody

The arrested person shall be brought to the Duty Officer, with the PFO s.51
particulars entered into the CIS.

Duty officer
- is responsible for acceptance, safety, security and welfare of PGO 49-01, 02
the arrested/detained person in the police station, the search of
such person,
- should decide whether the arrested should continue to be
detained or be released (unconditionally or on bail)

Police search
- should be restricted to: Lindley v Rutter
o any weapon/article which might cause harm to
himself/others or help him escape
o any article for further crime
o any evidence material to the arrest
- custody search shall be: PGO 49-04
o conducted by officer of the same gender and
o only officers of the same gender can be present
o in areas offering privacy (e.g. in a locked search room)

3.3 Rules and Directions for the Questioning of Suspects and the
Taking of Statements (1992)

The effect of the Rules and Directions are explained as follows:

- They are NOT rules of law but possess considerable Pearl v R
importance
- Judicial power is not limited by such Rules and Directions
- The criterion of admission of a statement is fairness, and
voluntariness of the admission is key: voluntary statement
might be admitted despite breaching the Rules and Directions
- Burden of proof of voluntariness is on the Prosecution to prove Ibrahim v R, SJ v
beyond reasonable doubt Lam Tat Ming
Lee Fuk Hing v
HKSAR

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o Not obtained either by fear of prejudice or hope of

advantage exercised or held out by a person in
authority
o Person in authority: e.g. investigating authorities,
employers, prison officers, etc.
o Person in authority must also be perceived
- The suspect has a general right to remain silent

The Rules and Directions focus on the accused’s right to remain silent,
against self-incrimination and that any admission shall be made on a
voluntary basis:
- Administer caution as soon as police officer has evidence Rule II
which would afford reasonable grounds for suspecting that a
person has committed an offence (even before accused was
arrested)
o Objective test: must see whether the belief was HKSAR v Chiu
reasonable based on evidence at hand Wing Kai
o Contemporaneous record
- Fresh caution if admitted to an even more serious offence HKSAR v Pang
- Caution before interview/inquiry at investigating authority Ho Yin
would be more comprehensive Rule III
o Contemporaneous record
- In exceptional circumstances, questions may be asked after he Rule III
has been charged; more caution administered
o Contemporaneous record

Where an accused makes an admission/confession against interest

(inculpatory statement), such evidence may be admissible as an
exception to the hearsay rule.
- Where the admissibility of a confession is challenged by the
Defence at trial, the Prosecution must establish that it was
made voluntarily by the accused
- “The criterion for admission of a statement is fairness. The Pearl v R
voluntary nature of the statement is the major factor in
determining fairness. If it is not voluntary, it will not be
admitted”

REMEMBER: THE RIGHT TO REMAIN SILENT IS NOT

ABSOLUTE!

3.4 Verbal statement/Admission uttered by the accused

Contemporaneous record of interview outside of offices would be

made on notebook.
- Ranks below Chief Inspector shall be issued with official PGO 53-01
notebook; carried at all times during duty
- Notes shall be made at the time of an event or as soon as is See also R&D
reasonable practicable Direction 1
- All statements made
- Shall not erase or attempt to erase
- Shall not remove any page or part
- No translation into official vocabulary R&D Direction 1

There are different forms of evidence of admission:

- Officer’s oral testimony that he heard the admission

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- Officer’s unilaterally written note

o May not be subsequently admitted in evidence
- Officer’s note which is read, confirmed and signed by the
accused
o May be admissible

3.5 Written statement and/or video record of interview of the accused

There are different police forms:

- Pol 857: interviewing suspects/accused persons
- Pol 154: interviewing witnesses and caution need not be
administered
- Any interest against the suspect’s interest can be admissible in
court

Note the use of written statements and video record interview:

- If a legal representative is present, it might be better to request
for written statements because it takes time to write down
everything and buys time for the client and the legal
representative
- If the client is alone, the VRI is preferable because the legal
representative can double-check if there is any procedural
impropriety

The Rules and Directions provide guidelines on written statements:

- Statement written down by himself or the police officer writing R&D Rule IV
o With caution
- If police officer writes the statement,
o Exact words should be taken
o No prompting
o Accused shall be asked to read it and make any
changes he wishes; should be signed by the accused or
if not, shall be noted down by the officer

The Rules and Directions also provide guidelines on interview records:

- Accurate records R&D Rule V
- Contemporaneous written record must be made except VRI See also R&D
- Written record should be read over and the suspect should be Direction 3
given the chance to read, and amend it if necessary; should be
signed or if not, noted down by the officer
- Nothing shall be obliterated

The Rules and Directions provide guidelines on supply of written

statement of charges:
- Forthwith given a written notice containing a copy of the entry R&D Direction 7
in the charge sheet containing the particulars of offence, in
simple language, with the statutory section quoted
- Shall be notified of any modification in written copy a.s.a.p.
- If on bail, then after surrender of bail and before appearing in
court

The Rules and Directions also provide guidance on provisions for

Defence:
- Should be allowed to speak on telephone, and consult privately R&D Direction 8
with solicitor or barrister; list of solicitors on request

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o May delay/prevent communication with

solicitor/barrister if causing delay or hindrance to
administration of justice
- Shall be allowed a solicitor/barrister to be present to advise
- Shall be allowed to speak to solicitor/barrister instructed by
third party acting on his behalf
- Entitled to a copy of cautioned statement/record of interview,
except if it would hinder administration of justice; if denied,
reasons must be fully recorded
- Shall be informed of rights and facilities available

IMPORTANT: Interferences may be perverting the course of

justice!

3.6 Antecedent statement

Antecedent statement is an “un-cautioned statement taken by police in Law Chung Ki v

order to enable them to inform the court of his antecedents for the HKSAR
purpose of sentence…”
- Cannot charge a person on info obtained from antecedent
statement/arrest form

REMEMBER: Check with the client to see what the interview was
for!

3.7 Identification parade

There is an internal code governing the procedure of ID parades:

- Not obliged to attend a parade
o Witness may identify you during court proceedings
(confrontation)
o Open to police for alternative arrangements
o Sign a form to attend ID parade or not where reasons
given may be produced in court
- Recorded by police
o ID parade book may be provided to Defence
- May be accompanied by legal representatives
- Distinguishing marks should be covered, e.g. using shower
caps or covering up clothing
- May be adjourned if actors were inappropriate
- Failure to comply with the code may affect weight of evidence HKSAR v Lo Ho
Chung

3.8 Fingerprints, photographs and other samples

The police officer can take from the accused photographs, fingerprints, PFO s.59
palm prints, weight and height measurements, sole prints and toe
prints:
- Where the person has been arrested
- The particulars may not be retained if no charge was pressed or
there was discharge before conviction or acquittal
o May retain until person is 18 or for 2 years if he is
cautioned by the police as to future conduct
- May be retained if there was previous conviction

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- May be retained until conviction is set aside on appeal

The police officer is authorised to take intimate samples: PFO s.59A

- Intimate samples:
o Sample of blood, semen or other tissue fluid, urine or
hair other than head hair; dental impression; swab from
private part other than mouth
- Conditions:
o Investigation of offence committed or believed to have
been committed
o For forensic analysis
o Authorised by police officer above superintendent
o Appropriate consent (in writing and signed)
o Magistrate gives approval
- Personnel collecting sample:
o Urine taken from same-sex police officer
o Dental impression from registered dentist
o Others from medical practitioner
- Entitled to access

The police officer is authorised to take non-intimate samples: PFO s.59C

- Non-intimate samples:
o E.g. head hair, nail, swab from mouth, saliva
- Conditions:
o Investigation of any offence committed or believed to
have been committed
o With or without consent
o For forensic analysis
o In police detention / custody on authority of court
o Authorised by police officer above superintendent
 Oral authorisation if written authorisation was
impracticable
- Personnel taking sample:
o Medical practitioner or police officer / public officer in
Government Lab
- Entitled to access

Authorisation from police officer if: PFO ss.59A(2),

- Suspecting that person from whom intimate sample taken 59C(2)
committed serious arrestable offence
- Believing sample will tend to confirm/disprove commission of
offence

Caution when providing the sample: PFO ss.59A(4),

- Nature of the offence 59C(4)
- Reasonable ground to believe sample will tend to
confirm/disprove commission of offence
- May/May not give consent
o Consent may be withdrawn at any time
o For non-intimate sample, reasonable force may be used
to take sample
- Might be used in criminal proceedings
- Might make request for access
- DNA might be permanently stored if convicted

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Other investigation authorities are also empowered by specific statutes. Notes pp.192-193

4. Bail/remand in the custody of investigating authorities prior to first appearance in Court

4.1 General

“It shall not be the general rule that persons awaiting trial shall be HKBORO Art.5(3)
detained in custody, but release may be subject to guarantees…”

Generally, after an arrest, investigating authorities must within 48

hours:
- Release the accused unconditionally
- Release the accused on own recognizance (on own promise)
- Place the accused on bail
o Deposit a sum of money with conditions

After the accused has been arrested and charged, the investigating
authorities must:
- Bring the accused before a magistrate as soon as practicable
and not later than 48 hours of apprehension
- Release the accused on own recognizance
- Place the accused on bail

The nature of bail:

- Conditional grant of liberty suspected of committing or
alleged to have committed a criminal offence
- Premised on presumption of innocence
- To ensure that D appears at trial and the public are protected
from further offences

Failure to comply with bail may lead to forfeiture of bail money PFO s.52(3A)(b)
and/or issuance of warrant for arrest.

REMEMBER: The power to grant bail by investigating

authorities is statute-specific!

4.2 Police bail

Normally, a police bail is granted: PFO s.52(1)

- Apprehended with or without warrant
- Unless the offence appears to be of a serious nature or the
person ought to be detained
- Possible actions:
o Grant bail
o Release the accused on own recognizance
- Particulars and conditions of the bail shall be recorded PFO s.52(2)

If the person is held under custody but not released on bail:

- Appears to the Officer in Charge or officer authorised by the
Commissioner that the inquiry cannot be completed
forthwith
- May release the person on bail or on own recognizance

Failure to comply with bail may lead to forfeiture of bail money. PFO s.52(3A)(b)

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4.3 ICAC bail

If a person is arrested under ICACO s.10: ICACO s.10A(2)-(8)

- Detained if it is necessary for the purpose of further inquiries
o Shall be brought before magistrate within 48 hours
after arrest
- Released on bail with deposit on conditions / sureties
o Conditions: e.g. attend at the offices or appear before
a magistrate
o Deposit shall be refunded at the next attendance
when conditions were met
- Possible forfeiture of deposit if conditions were not met

4.4 Other bail from investigating authorities

See Notes pp.201-202.

4.5 Treatment of juvenile offenders

Where a person under the age of 16 is apprehended with or without JOO s.4
warrant and cannot be brought forthwith before the juvenile court,
the police officer shall inquire into the case and release him on
recognizance with/without securities UNLESS:
- The charge is homicide or grave crime
- Necessary in the interest of that person to be removed from
undesirable person
- Reason to believe that release would defeat ends of justice

If the person was not released on bail, then he should be detained in a JOO s.5
place of detention unless:
- Impracticable
- Cannot be safely detained because he is unruly/depraved
- Inadvisable to detain because of health condition

Detained child/young person shall not be associated with adult JOO s.6
charged with any offence other than the joint charge.

Interview shall only be conducted in the presence of R&D Direction 5

parent/guardian/person not a police officer who is of the same sex.
- Shall not be arrested or interviewed at school if possible
- Otherwise consent from head teacher would be required

5. Effects where Accused and/or Legal representatives refuse to co-operate

5.1 General

Please note the right to remain silent is not absolute and may be
abrogated by legislation.

5.2 Perverting and/or obstructing the course of public justice

It is common law offence to pervert the course of public justice: HKSAR v Wong
- Acts or embarks upon a course of conduct Shing Yim

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- Which has a tendency to

- Is intended to pervert
- The course of public justice

In HKSAR v Wong Chi Wai, it is further explained that: HKSAR v Wong Chi
- It is a substantive offence even where the tendency does not Wai
actually result in interference with the course of justice
- Tendency: towards impairing the capacity of a court or
competent judicial authority to do justice
- Must impair administration of justice and not just lead to
unlawdulness
- Mens rea: knowledge or intention

5.3 Contempt of court

It is an act or omission calculated to interfere with the due AG v Butterworth

administration of justice.

5.4 Perjury/Making false statements

It is the wilful making of a statement material to the proceedings Crimes Ordinance

which he knows to be false or does not believe to be true. s.33

5.5 Dealing with proceeds of an indictable offence

There is a positive duty of disclose on a person who knows or has OSCO s.25
reasonable grounds to believe that any property he is dealing with
represents proceeds of indictable offence.

Note that there is a reverse burden of proof.

5.6 Disclosing identity of persons being investigated

A person may be guilty of an offence where he discloses the identity POBO s.30
of persons being investigated under Part II of POBO.

6. Effects where Accused’s rights are violated

6.1 Exclusion of evidence obtained in breach of a person’s
constitutional right at trial

This would not per se lead to the evidence being inadmissible at trial;
there is discretion in the judge:
- Three conditions: HKSAR v Khan
o Conducive to fair trial
o Reconcilable with the respect due to the right or
rights concerned
o Appears unlikely to encourage any future breaches
of those rights
- Objective is to ensure accused receives fair trial HKSAR v Chan Kau
Tai

6.2 Exclusion of evidence of alleged confession and/or identification

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Alleged admission of guilt made by an accused to persons in SJ v Lam Tat Ming

authority must be made voluntarily, i.e. not by threats, inducements,
oppression or deception.

If the accused challenges the admissibility of admission, onus is on

the Prosecution to prove beyond reasonable doubt that it is voluntary.
(See voir dire hearing)

For breach of Rules and Directions, the trial judge has a residual SJ v Lam Tat Ming
discretion to exclude the admission.

6.3 Other possible actions

Other possible actions in case of violation of the accused’s rights:

- Stay of proceedings
- Judicial review of the investigating authority’s decision
- Criminal proceedings against the officer involved
- Formal complaint to CAPO/ICAC Complaints Committee
- Civil proceedings against the investigating authority

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