Trials in CFI

Trials in CFI

1. Pre-trial hearings

   • Listing Judge: fix dates of trial
   • Pre-trial Revue
     • house-keeping meeting - i.e. changes, arguments, expert evidence, need for voir dire, particular points of law (authorities), etc

2. 1. Arraignment

   • apply for discharge --> arraign D before the court
     • unfettered, not in prison clothes
   • 2. Plea
     • call D's case + name
       • Interpreter read out each count in indictment to D
         • D must personally plead "Guilty" or "Not guilty" to each count
           • No ambiguous/equivocal pleas
           • if doubt, enter "Not Guilty" plea
         • court must take steps to ensure D understands each charge
     • 3. Select jury
       • D plead not guilty + prosecution wishes to proceed
         • jury must be empanelled --> try the case
           • 7-9 members
           • juror must be ELIGIBLE
             • aged 21-65
             • RESIDENT of hk
             • sound MIND
             • no DISABILITY that prevents him from serving as juror
             • good CHARACTER
             • sufficient knowledge of LANGUAGE of trial
             • not EXEMPTED
               • applied for + has GOOD CAUSE for not attending
               • judges, magistrates, members of law enforcement agencies, barristers and solicitors, full-time students of universities
           • BALLOT --> select from pool of potential jurors
             • P/D both have unlimited challenges WITH CAUSE
             • D has 5 challenges WITHOUT CAUSE
           • take OATH or AFFIRMATION to "deliver a TRUE verdict + according to the EVIDENCE"
             • D is delivered into Jury's charge
       • 4. Prosecution give Opening Speech
         • inform jury - case's leading features
         • outline EVIDENCE to be called
           • avoid mentioning evidence that will be challenged
           • take judge through - elements, damage, etc
         • 5. Witnesses give testimony
           • A. PW takes OATH or AFFIRMATION to tell the truth
             • B. Examination in Chief
               • examination of witness by party that called him
                 • --> bring out witness' evidence through a series of questions
                   • no leading questions
                     • UNLESS it's a matter not in dispute + other side consents
                     • q contains answer OR q assumes facts not yet established
                   • open questions
                 • also, PW produce prosecution exhibits
               • C. Cross-examination
                 • by opposite party, optional
                   • can be on matters not raised in EIC
                   • obtain evidence from PW --> favorable for D
                   • challenge + undermine PW's evidence
                   • MUST put D's case to PW
                     • Browne v Dunne rule: D must make it clear to PW that evidence not accepted and in what aspects not accepted
                     • PW must be given opportunity to answer challenge --> jury assess PW's evidence
                   • lay foundation for D's evidence
                 • use leading questions, but open questions not advisable
                 • D. Re-examination of PW by P
                   • optional
                     • repair damage done in CE (confusion, inconsistencies, etc)
                     • respond to matters that arose in CE for the first time
                   • no leading qs
                   • matters addressed here MUST have arisen from CE
           • 6. Close of Prosecution's case
             • evidence NOT sufficient --> stop trial?
               • No case to answer
                 • judge is satisfied that no jury properly directed could convict D --> withdraw case from jury + direct jury to acquit
                   • D doesn't have to prove anything - just submit NCTA, in absence of jury
                     • judge should still consider this, even if D doesn't submit
                   • WHERE:
                     • 1. NO EVIDENCE that the crime was committed by D
                     • 2. TENUOUS evidence
                       • self-contradictory, out of reason and all common sense
                   • prosecution evidence is such that no jury properly directed could convict
                     • BUT if strength of P evidence depends on view of a PW’s credibility = leave to jury
                 • P: right of reply
                   • Judge: No case to answer
                     • direct jury to return verdict of Not Guilty
                   • Judge: there is case to answer
                     • trial proceeds
                       • 7. Defense case
                         • A. Defense opening
                           • Explain charge, elements of charge, evidence, outline of facts, burden of proof
                             • UNLESS D is the only DW = no opening (CPO s.55)
                           • B. Examination in Chief
                             • D prepare D's Proof of Evidence
                             • avoid leading questions
                             • C. Cross-Examination
                               • by P OR counsel for other Ds
                               • D. Re-examination by D's counsel
                                 • BUT might expose more contradictions in evidence
                                 • E. D closes case
                                   • Call more DWs?
                           • D can give evidence (witness box, oath)
                         • 8. P's Closing Speech to Jury
                           • P summarize case + argue
                             • UNLESS D is unrepresented + calls no DWs
                             • improper to say "PW has no motive to lie"
                             • can't comment on D's failure to give evidence
                             • no statements of personal belief
                           • 9. D's Closing Speech to jury
                             • highlight weaknesses and shortcomings in Prosecution case
                               • no "xxx will happen to D if guilty verdict!"
                             • 10. Judge: sum up to Jury
                               • enable the jury to understand their task in this particular case
                                 • understand:
                                   • burden + standard of proof
                                   • roles of judge/jury
                                   • elements of offense/defense
                                   • alternative convictions
                                   • directions on law
                                 • consider each D's evidence separately
                                   • jury retire to consider verdict
                                 • duty: put D case to jury - fair, accurate, understandable
                                   • even the defenses that arise on evidence (not relied on by D)
                                 • judge can comment on evidence, but don't usurp jury
                               • 11. Verdict
                                 • Guilty or Not Guilty
                                   • Not guilty
                                     • D acquitted, jury discharged
                                   • Guilty
                                     • discharge jury --> court proceeds to sentence
                                   • if can't reach verdict --> judge discharge jury
                                 • by foreman of jury (open court, in presence of other members + D)
                                   • if 7 members, unanimous OR 6-1 OR 5-2