THE CASE AGAINST ROMEO
- i) According to the law, a person is guilty of committing theft if he or she dishonestly acquires another person’s property with the aim of permanently depriving him or her of it. In the case of Romeo, the act of walking out of the shop without paying for the condoms was not carried out intentionally. He intended to pay for the condoms but forgot. According to Romeo, he intended to pay for the condoms but forgot after receiving the distressing phone call from his girlfriend Cleopatra. At the time of the crime, Romeo was not aware of his behavior due to his state of mind.
In order to prove liability, the prosecution must first prove intention. This would show the highest level of fault on the part of the defendant. The prosecution must also prove that Romeo was in the right state of mind at the time the crime was committed. In the case against Romeo, it would be impossible to prove beyond reasonable doubt that he was guilty. Romeo had no control at the time of the crime, and his stealing action was unconscious.
According to the laws of Hong Kong, the accused is expected to answer the questions asked by the police with regard to the crime for which they are accused. However, he has the right to remain silent. According to the Hong Kong Bill of Rights Ordinance Article 11 (2)(g), the police cannot force the suspect to testify, because the law ensures the right against self-incrimination and the right to self-defense. As his lawyers, we would advice him to cooperate with the police and answer their questions, as this would help prove his innocence. He should tell them what happened and that he did not intend to steal. We will also advise him on what actions the police may take to verify his claim, for instance, checking his phone records. He may also tell the magistrate that he had explained his case to the police, but must keep his story consistent.
Bail
- ii) Every person who is accused of a crime is presumed innocent until proven guilty. After the Hong Kong Bill of Rights Ordinance was enacted in 1991, admission to bail is a fundamental right recognized under Article 5(3). For Romeo, the crime he had committed was not serious enough to warrant denying him his right to bail. According to Section 9 CPO, a court has the right to order any person accused to admitting to bail. Section 9 CPO 1 A (2) states that those seeking bail should not fail to report on the date appointed by the court, should not commit any offences while on bail and should not interfere with witnesses or obstruct the course of justice. In view of the rules set out in section 9 CPO, the client cannot be denied bail based on crimes that he had been arrested for seven years ago. In addition, those crimes are in no way related to the crime the client is currently accused of committing. Moreover, the client has lived as a law-abiding citizen for the past seven years. He has a stable job in Hong Kong and could easily afford the condoms he is accused of stealing. Moreover, it is his right to grant the bail because he meets the threshold set out in section 9 CPO. The client will avail himself to the court when needed and will not obstruct with the course of justice.
While the prosecution can concentrate on the client’s background and argue that Romeo was convicted in the past, the crime for which he is accused now is minor. Again, while the prosecution can argue that based on Romeo’s background, it is possible that he could consider running away, the bail arrangements should made be made on the condition that he does not leave the country until after the case is over. Although Rome has a BNO passport and the prosecution might claim that he could decide to leave the state, Romeo can be made to report to the police within certain time frames to assure that he does not harbor any motives of leaving the country. Having this background, it would be the submission of the defense that the client needs to be granted a cash bail, under the conditions stipulated above. Based on these submissions, there are high chances that the bail will be granted.
- iii) Trial procedure
In the case against Romeo, the first hearing will be held almost immediately. At this stage, the magistrate only reads the charges before the accused and he will make his plea. The magistrate will not listen to any of the arguments but will only inform the accused of the charges before him. After Romeo pleads not guilty, the magistrate will reschedule the case and make arrangements for the next hearing.
In the case against Romeo, he had pleaded not guilty and was denied bail. It is therefore the responsibility of the magistrate to determine whether the refusal was reasonable. For this reason, the first hearing should be carried out within forty-eight hours after the arrest, to avoid the prosecutors materially violating the Basic Law and Hong Kong Human Rights Ordinance. At the next hearing, the court will determine whether Romeo is guilty of the crime for which he is accused. The defense will submit that there is no case since there is no case due to lack of evidence. He will then be cross-examined by the prosecutor. At this point, it will be impossible for the prosecutor to prove reasonable doubt. The prosecution will then close the case. After the closing speech, the court finds that there is no case to answer, and the charges will be dropped. The case will then be dismissed and Romeo released.
Unless the prosecutor can provide evidence to the contrary, Romeo cannot be held responsible for the crime because he was not in the right frame of mind at the time the crime was committed. Therefore, the prosecution will be trying to prove Actus Reus and Mens Reus. It is not contestable that Actus Reus was committed since the client walked away without paying for the condoms. However, the Actus Reus is not supported by Mens Reus since the prosecution cannot prove intention to commit the crime of stealing the condoms. In order to prove liability, the prosecution must prove intention. The prosecutor must also prove that Romeo was in the right state of mind at the time the crime was committed. In the case of Romeo, he could plead not guilty, as his stealing action was the result of automatism. There was no Mens Reus as the conduct was involuntary. Romeo had no control at the time of the crime, and his stealing action was unconscious. He did not realize that he had not paid for the goods until he left the shop. If it was not for the distressing phone call from his girlfriend, Romeo would have paid for the goods. He should therefore not be held responsible for his actions.
- THE CASE AGAINST AL PACINO
The term homicide refers to the killing of one human being by another. For homicide to be considered lawful, it should be the result of legitimate force in the prevention of crime or self-defense. Any other type of homicide is considered unlawful. Unlawful killing has to show Mens Rea or Actus Reus. The Mens Rea in this case would be the intention to kill Marcus. The Actus Reus is the action of killing Marcus, which he did when he hit him with a teapot. Even though Al Pacino did not intend to kill Marcus when he hit him with the teapot, the injuries he received resulted in his death. In factual causation, the cause of death should solely be the actions of Al Pacino. Therefore, he would be liable for indirect manslaughter. Although his actions may not have solely caused the death, he contributed to it, and this is considered legal causation. According to the thin skull rule, although the blow Marcus receive was not sufficient to kill him, his condition made his circumstances unique. However, Al Pacino can only be charged of involuntary manslaughter and not voluntary manslaughter. This is because although the intention was not to kill, the act of hitting the victim resulted into death eventually.
For a homicide (voluntary manslaughter) to be considered murder there must be proof of malice and aforethought. The prosecution should be able to prove that the defendant had the intention to kill the victim, or cause grievous bodily harm. In the case of Al Pacino, he did not go into the restaurant with the intention of killing Marcus. He can therefore not be accused of committing murder or voluntary manslaughter. However, he could be accused of involuntary manslaughter.
In the case against Al Pacino, he was provoked into committing manslaughter. According to common law, a person may claim to have been provoked if the dead person did something, which would lead to sudden and temporary loss of self-control. Examples of such states include rage, resentment, and uncontrollable anger. It must also have been somehow connected to the dead victim. Such cases are usually difficult to prove as different people have different levels of provocation, and are not likely to react in the same way to different forms of provocation. The actions must also be consistent with what a reasonable person would have dome under similar circumstances. The prosecution must prove that the circumstances surrounding the death of the victim would not be caused by provocation, and would not be triggered by bad temper.
Provocative actions could be in form of words said or things done by the accused to lead to their reaction. They may not have necessarily been said or done to the accused, and the person accused may not necessarily have done them. In the case against Al Pacino, Marcus constantly insulted his girlfriend, and this may have provoked him to act as he did. Al Pacino did have prior knowledge of the deceased and, therefore, it is not possible to argue that he planned to kill Marcus. His actions were the cause of loss of self-control. He tried to ignore the insults being hurled at his girlfriend by Marcus until he could no longer take it. The defense must prove that when he hit Marcus with a teapot, it was not with the intention of killing him, but simply as a reaction to the provocation.
The prosecution must also prove that the actions of the accused would have been similar to those of another reasonable person in the same situation. It must be proved that he was mentally sound, and that his behavior was not peculiar under the circumstances. Al Pacino was simply reacting to the insults Marcus was hurling to his girlfriend. He did not consider the possibility that Marcus may have had an unusually thin skull. When he hit Marcus, he did not intend to kill him, but was simply reacting to provocation.
Marcus, in his intoxicated state, constantly insulted Al Pacino’s girlfriend. Initially, Al Pacino tried to make him stop and tried to make him leave them alone. Marcus did not heed. He continued to insult them and this provoked Al Pacino to anger. That was when he took the teapot and hit Marcus with it. Under objective tests, a normal person would have been injured, but would not have died. However, this was not the case. The case of Marcus was unique. It turned out that Marcus had a very thin skull, and the impact led to his death. Under subjective test, Al Pacino was responsible for the death of Marcus. When he hit Marcus with the teapot, he did not intend to kill him. Since Al Pacino did not intend to kill Marcus, he would instead be charged with involuntary manslaughter.
