法律专业COURSEWORK ASSIGNMENT范文

Assignment

 

Question 1

 

a. Who has the legal burden of proof in this case, and to what standard? Briefly explain therationale behind this arrangement. (5%)

Simply speaking, burden of proof is an obligation to prove. Person who alleging has this obligation. That is to say, person who alleges must prove, who must undertake the obligation of proving under specific condition. There are two principal burdens, the legal burden and the evidential burden. The legal burden of proof is also called burden of convince, which is the result that the party providing evidence to prove. Legal burden can convince fact finder, including the jury and the judge, to make favourable affirmation to the burden holder. Otherwise, if the fact that needs to be proved is in an unknown status, person who bears the burden of proof has to undertake the consequence of losing the lawsuit. 

In this case, the police who alleges Annie theft of “Noir” has the legal burden of proof. After police’s investigation, they found evidence against Annie, and brought these evidence to the court. Police has the obligation to persuade the jury or the Judge that Annie is guilty. Proof beyond reasonable doubt is a recognized standard in the criminal trail. For this purpose, policy provide evidence accordingly, including CCTV footage, “Noir” which has been recovered from Annie’s bag at home, “Noir”’s certificate, etc.. These proof can be thought as beyond reasonable doubt, as we don’t need proof beyond every shadow of every doubt. 

 

b. Comment on each piece of prosecution evidence with regard to (i) its classifications and (ii) admissibility. (15%)

All materials that are used to prove the case fact are evidences. With regard to the classification of evidence, it can be classified as oral evidence, documentary evidence, and real evidence. Oral evidence is also called testimony, which is evidence given by a witness on oath in open court by word of mouth. Documentary evidence consists of documents which are tendered in court as evidence,which including not only documents in writing, such as a deed or a letter, but also maps, plans, graphs, drawings, photographs, tapes, films, negatives, CDs, DVDs. Real evidence refers to physical things which are introduced as evidence in court, such as the murder weapon. 

Considering the admissibility of evidence, the way the evidence arise are the first issue need to concern. in criminal cases, evidence is usually relevance and admissibility; however, if evidence obtained by way of a process abusing, these evidence cannot be accepted by the court. Secondary facts also need to consider the problems of admissibility. The party who has submitted evidence has the evidential burden. In the process of prosecution, according to the lawsuit status, the parties should provide evidence to prove the facts they have alleged or facts which they are opposed. If the party cannot provide evidence to prove the facts they have alleged, the judge shall refuse to submit the facts to the jury for hearing or deliberating, and the other party shall have no contradictory obligation. The party seeking to produce the evidence has the evidential burden, the facts they have provided will affect the admissibility of the evidence. 

In this case, evidences against Annie is listed by the police. Among these evidence, oral evidence includes: 1) Evidence from Mrs X on her ownership of “Noir” and how “Noir” was lost on 24th December 2017; 2) Evidence from Sandy, Mr X’s secretary, on Mrs X’s usual style and pattern of extravagant spending, as well as how Annie always eyed Mrs X up and down with envy; 3) Evidence from Rich Company’s security guard who saw Annie leaving in an unusually rushed manner. Documentary evidence includes: 1) CCTV footage; 2) “Noir”’s certificate stating its value and date of sale to Mrs X. Real evidence is “Noir”, which is a physical thing and has been recovered from Annie’s bag at her home. Annie’s denfence is oral evidence, which needs secondary facts to test the admissibility. 

Evidence can be taken as the basis of reaching a conclusion through the test of admissibility.  For documentary evidence and real evidence, it should stress to review the following contents: 1) Whether documentary and physical evidence are original material or document, and whether they are identified or appraised; whether the picture, video, copy are accordance with the original material or copy. Whether they are made by two or more person. Are there documentary instruction and signature of the producer about the producing process and the storing place of the original material and copy;2) Whether the collecting process and methods of material and documentary evidence are accordance with laws and relevant regulations; Whether material and proof evidences that are abstracted and mortgaged through investigating, inspecting and searching are attached with relevant records, lists; Whether records and lists have signature of investigator and holders of materials; materials without signature shall be marked with reason; Whether name, feature, number, quality of articles are marked clearly;3) Whether material and documentary evidences are damaged or changed when they are collected, kept or appraised;4)Whether material and documentary evidences are correlated with case fact; Whether biology sample, traces and materials such as bloodstain, body fluid, hair and fingerprint have conducted DNA identification, fingerprint identification, and compared with corresponding biological feature and material of victim, etc.;5)Whether material and documentary evidence related with the cases are collected comprehensively.

 

c. Is classification relevant to the weight of evidence? If so, how and to what extent? If not, 

why? (5%)

Classification is relevant to the weight of evidence. Weight of evidence refers to the role the evidence plays in proving the facts of cases. All the evidences have an effect to prove the facts of cases. Generally speaking the different classification of evidence has different weight to prove the facts. For example, the weight of direct evidence is greater than the weight of indirect evidence. And the weight of oral evidence is less than the weight of documentary evidence (physical evidence). To distinguish oral evidence and documentary evidence, it should consider the contents and forms of evidence comprehensively. Whether the evidence can prove the facts and how it can prove the facts, on the one hand, it refers to the provisions of the law; on the other hand, it relies on the judge’s judgement. 

Under the system of legal evidence, the weight of evidence is regulated by legal regulations. Under the evidence system of free evaluation, the weight of evidence is decided by the judge according to free evaluation. In mainland China, the weight of evidence is confirmed by judicial official through individual review of evidence and mutual corroboration among evidences. 

In this case, Annie’s denfence is mainly oral evidence, the weight of oral evidence is relatively lower. Although Mrs X’s allegation and her secretary Sandy’s testimony are oral evidence, it can be corroborated by documentary evidence, such as CCTTV footage, “Noir”’s certificate. Documentary evidence is stronger than oral evidence in many situation. And the real evidence has the strongest weight, “Noir” was finally found from Annie’s bag at her home, the jury and the Judge are easily to believe Annie’s theft of “Noir”. 

 

d. Who has the evidential burden of proof of Annie’s defence? How can this burden be satisfied

with regard to each aspect of her defence? (15%)

Evidential burden is also called the burden of providing evidence. In the process of prosecution, the parties are obliged to provide evidences to prove the facts they alleged, or oppose the facts they disagreed with. If the party fails to provide evidence after bringing the facts to the court, the judge shall refuse to submit the facts to the jury for hearing and deliberating, and the other party has no obligation to defend themself. 

To defend herself, Annie claims that: 1) She mistook “Noir” for a random pebble. She had picked it up because she did not want anyone to trip on it; 2) She put it in her bag, intending to throw it away with other rubbish, but had forgotten after sherushed home to feed her baby granddaughter as her daughter and son-in-law were both suddenly summoned to work; 3) She states that she could not read the notice as she has cataracts in both eyes. Annie’s defence are all oral evidence, she has the obligation to adduce sufficient evidence on the facts she alleged. Annie claimed she mistook “Noir” for a random pebble, the reason she picked it up is because she wanted to do something good. This allegation may need to consider Annie’s daily performance, if Annie always works with chariness and responsibility, and is always ready to help others. This evidence is easily accepted by the jury and the judge. Annie claims that she put “Noir” in her bag and forgot to throw it because she rushed home to feed her baby granddaughter as her daughter and son-in-law were occupied by some unexpected things. To prove this defence, the working condition of Annie’s daughter and son-in-law must be proved. If they were indeed busy and were not able to look after their daughter that day, Annie’s defence might be real. At last, Annie claims that she cannot read notice as she has cataracts in both eyes. To prove this, specialist physician’s diagnosis is required. If Annie can adduce sufficient evidence on these facts to justify her claims, the jury and the judge may determine in favour of Annie. #p#分页标题#e#

 

Question 2

 

a. State and explain all procedure that needs to be observed by Minnie and Martin and the consequences of default up to the close of pleadings with reference to the Rules of High Court(Cap. 4A) (“RHC”). (It is NOT necessary for students to consider practices unique to personal injury actions under Practice Direction 18.1.) (15%)

The Pleadings set out what is alleged or disputed, which is mainly procedures and not the evidence by which the fact is to be proved. According to the Rules of High Court (Cap. 4) (“RHC”), there are procedures which must be satisfied with. Pleading process refers to the process of plaintiff sue and defendant plea. In Hong Kong, one can file civil sue in the following ways:

To start the procedure, as the Plaintiff, Minnie needs to send Letter before action. Minnie then needs to issue Writ of Summons. Almost all civil actions involving fact dispute need to begin the lawsuit through Writ of Summons. Civil disputes that cause property losses related with contract, infringement, fraud, infringement of personal injury and trust can all file lawsuit through Writ of Summons.(Order 6 RHC) After Minnie serves Writ of Summons (Order 10 RHC), as the Defendant, Martin shall return Acknowledgement of Service and Notice of Intention to Defend (Order 12 RHC). This Acknowledgement informs Minnie that the action is to be defended.  

After Minnie has filed a lawsuit, the Particulars of Claim (unless served with the writ) shall be delivered to Martin within 14 days. The delivery shall be sent to Martin in the form of mail, face to face, putting into the mail box, etc., which sets out the facts alleged to give rise to the claim (Order 18, rule 1 RHC). After the Claims are delivered, Minnie shall submit a pledging writ to the court. Within 14 days after the Claims delivering, Martin must fill in Acknowledgment of service to show whether to raise a plead, and send the Acknowledgement to registry of the court to file within 14 days. If Martin fails to deliver the Acknowledgement within the above period, Minnie may apply to the court for summary judgement. Martin shall also serve Defence within 14 days of delivering the Acknowledgement, the Defence should set out the facts upon which Martin relies to deny liability (Order 18, rule 2). If Martin fails to submit Defence within the above period, the legal effect equals to fail to submit deliver Acknowledgement. The Defence may load reasons for Martin to oppose claims of Minnie, and it may also serve a Counterclaim to against Minnie. If there is a counterclaim, Minnie shall serves a Defence to Counterclaim; if there is no counterclaim,Minnie may serve Reply to Defence(Order 18, rule 3RHC)

 

b. Briefly explain the following procedures, their purposes and how each of them correspond to the spirit of the Civil Justice Reform:-

i. Discovery;

ii. Case management conference;

iii. Pre-trial review.

 (15%)

In Hong Kong, the procedure of Discovery is regulated in Order 24, RHC. Discovery is a pre-trial procedure in a prosecution, which is made for an advance disclosure of documentary evidence. The purpose of Discovery is forcing the disputing parties to disclose to each other, the documentary evidence they currently have, or once had, or by their dominance, custody or control. These documentary evidences are relevant to controversial issues. The Discovery procedure not only discloses evidence, but also lets the other party get access to these files. All documents disclosed in the Discovery procedure are bound by an implied obligation, that is these files will only be used by the parties for litigation purpose. Generally speaking, the Discovery procedure cannot request the third party. And only for the purpose of Discovery, it is also inappropriate to make the third party be one party of the proceedings. If documents or information preserved by the third party are required, it usually needs to summon the third party as a witness. Even so, when the court considers the third party hold documents or information relating to the case, the court shall have the right to require the third party submit and disclose the documents and information they have. 

The case management conference is regulated in Order 25, RHC. The purpose of case management conference is to facilitate the proceedings and give directions for the management of a case. Within 28 days after the pleadings, the parties are required to complete a questionnaire. Upon completion of the questionnaire, the parties are able to reach an agreement on the directions relating to case management that the parties wish the Court to make, and a timetable for the steps of giving the direction and the date of trial. The timetable must include a date for a pre-trial review. Pre-trial review is also an important procedure in the lawsuit, the purpose of pre-trial review is to determine whether the case shall meet the requirements of prosecution, and deliver the case to court for trail. Discovery, case management conference, and pre-trial review are all important procedures and mean a lot to the civil justice reform. These procedures have outstanding advantages, including: 1) to improve the cost effectiveness of civil law procedures, especially for procedures which must be conducted in advance; 2) to ensure that cases can be dealt with effectively within an reasonable and feasible scope; 3) to advocate and cultivate a streamline consciousness which matches the complexity of the cases; 4) to ensure that all parties can achieve justice in the lawsuit; 5) to settle disputes conveniently; 6) to ensure the court resources can be distributed fairly. 

 

C. What can Minnie do to preserve the machine? Outline the procedure she would have to follow and illustrate your answer by reference to decided cases and any relevant rules. (10%)

In this case, in order to determine the cause of the machine’s failure to stop, Minnie wishes to engage mechanical engineering experts to examine the machine. Nonetheless, a mutual friend informs Minnie that Martin is now wishing to “pack up” and relocate to South Korea, where his wife and children are. As the machine is an important real evidence, and now this evidence is likely to lose, or with high possibility that the evidence is difficult to obtain afterwards, to preserve the machine, Minnie can apply an injunction. 

At any stage of civil proceedings, usually followed by the issuance of writ of summons, one party can apply to the court for an interim injunction to regulate what the other party shall and shall not do before the trial. Such a demand is prerequisite and justified. The purpose of such an injunction system is to protect parities from loss. The loss means that even if the litigation ends in favour of one party, what the winning party gains may not be able to compensate for the loss. In an emergency, the plaintiff can even apply for the interim injunction unilaterally before litigation, but the application situation must be notified to the other party unless it is indicated that fulfilling the notification obligation will make the unilateral application come to naught. 

If the applicant wants to obtain an interim injunction, the following shall be proved: the case has a serious question to be tried and a real prospect of success. And the balance of convenience can be achieved in support of the grant of the injunction. If the plaintiff can guarantee to compensate for the loss suffered by the injunction in the case of the defendant's victory, the court may normally grant an interim injunction to the plaintiff. The interim injunction is immediately followed by the writ of summons, directing the defendant to do or cease to do certain acts. The interim injunction can be prohibitive or mandatory .

In this case, Minnie can apply Anton Piller Order. Anton Piller Order is an injunction that prevents the defendant from destroying the evidence of guilty by allowing specific people access to the defendant's domicile to search, confiscate and withhold documents or other items. For Anton Piller Order, the notification to the other party is not required. If the plaintiff wants to obtain the injunction, the following shall be proved: there are substantial prima facie grounds to indicate that the case has solid evidence; the potential damage caused by not granting the injunction is very serious; there is evidence that the defendant has documents or articles that prove guilty and may destroy the materials before the inter parties application. To sum up, in order to preserve the subject matter of the claim or relevant documents, the court has the power to make a mandatory injunction that requires that the defendant allows the plaintiff to enter the place under the defendant's control to inspect and detain objects, and ensure such articles and documents to be kept. 

 

D. What can Minnie do to ensure that Martin does not move his assets to South Korea? Outline the procedure she would have to follow and illustrate your answer by reference to decided cases and any relevant rules. (10%)

In order to ensure that Martin does not move his assets to South Korea, Minnie can make an application of Mareva injunction to the court for property preservation. 

Mareva injunction is regarded as a kind of interim injunction designed to limit the disposition or property transfer (may be used to pay the plaintiff's debt) and guarantee the civil judgement can be effectively enforced. The court has the power to prevent the defendant from transferring or disposing the assets that may be used for execution in order to avoid the future judgment debts by means of interim injunction. The ban would "freeze" a specific number of assets (the capital value would be roughly equal to the plaintiff's indemnity claim during litigation).#p#分页标题#e#

If Minnie wants to obtain the Mareva injunction, she must prove that the case has a serious question to be tried. The defendant truly has the property in the legal domain and the risk of the defendant transferring property to other domains really exists, causing that even if the plaintiff wins the lawsuit, the verdict is just a blank text that can not be executed. 

In order to ensure the validity of Mareva injunctions, the court may make an incidental order making the following requirements: (1) disclose the assets; (2) disclose relevant documents; (3) respond to questions. These injunctions can help to determine the location, nature and location of the assets; clarify the legal ownership of the assets concerned; make the third party aware of the existence of the injunctions and prevent the third party from assisting the defendant to transfer or dispose the property willfully or negligently. The purpose of the disclosure is to determine the location of the defendant's assets. In exceptional cases, under Mareva injunction, Anton Piller order can help to assist the discovery of evidence. 

 

E. Set out the flow of a civil trial and briefly explain each step. (5%)

The plaintiff’s case begins with the plaintiff's allegation to the judge (unless the burden of proof lies in the defendant). 

The plaintiff's witnesses will be the first to testify and each witness may accept re-examination after the cross-examination. 

After all witnesses of the plaintiff have provided evidence, the testification of the plaintiff is completed. 

Then the defendant’s witnesses testify and accept the cross-examination and re-examination of the court on the relevant evidence. 

After the testimony of the defendant’s witnesses, the parties shall make closing submissions orally or in writing. 

The form depends on the judge and the complexity of the case. When the judgment has been made and declared, the registrar or relevant officials of the court will record the judge's decision and the orders related to litigation costs. 

 

F. Explain Martin’s offer and the cost consequences thereof under relevant provisions of the RHC. Who would be liable for costs and from which point in time? (5%)

An important change in the reform of the civil justice system is the approval of the sanctioned offer.The new rules establish a formal settlement proposal system. The system allows the defendant and the plaintiff to make proposals for dispute settlement and not accept proposals. But in the later litigation, the party that fails to obtain a better judgment shall bear additional costs. Specifically, according to Order 22 rule 23 of the RHC, these additional costs may include: part of interests the plaintiff was supposed to have; the plaintiff may be required to pay the defendant’s some costs after the order have been accepted by parties; etc. 

The system of sanctioned offer aims to encourage all parties to consider the possibility of reconciliation and avoid unnecessary delays in litigation.