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PRESS RELEASES | SEP 25, 2015

Two Successful Cases in Clinical Legal Education

 CLE

Our Clinical Legal Education (CLE) programme has assisted in rectifying several miscarriage of justice cases since its introduction in January 2010. We are happy to report two recent cases.

In the first case HKSAR v A (CACC 400/2013, 16 September 2015), the defendant was convicted by the jury of conspiracy to rob and was sentenced to 8.5 years’ imprisonment. Legal aid for an appeal to the Court of Appeal was initially refused for lack of merit. He sought help from us while he was in Stanley prison. With the research and assistance from our CLE students, we took the view that there were arguable grounds of appeal, and we helped him to persuade the Director of Legal Aid to grant legal aid in April 2015. Eric Cheung, our Director of CLE, was assigned to be the solicitor advocate for the appeal hearing. Upon discovery that the police had failed to disclose before trial certain telephone records which supported his innocence by contradicting what the key prosecution witness had alleged against him, bail pending appeal was obtained in July 2015, after he had been in custody for 33 months. His conviction was eventually quashed by the Court of Appeal upon concession by the Department of Justice.

In another case HKSAR v Law Yat Ting (FACC 3/2015, 26 October 2015), the defendant was intercepted by a van driver on a busy street in Tsuen Wan, 30 feet away from the van from which the defendant had allegedly just stolen his mobile phone. Police investigations uncovered no evidence which implicated the defendant in the alleged theft, but he was eventually charged with the offence of tampering with a motor vehicle under section 49 of the Road Traffic Ordinance by his act of closing the door of the van. Unrepresented at trial, the defendant’s defense of mistaken identification was rejected by the magistrate, who sentenced him to 6-weeks’ imprisonment. Represented by counsel on legal aid, his intermediate appeal to the Court of First Instance was dismissed and he served his sentence. He was refused legal aid for his application for leave to appeal to the Court of Final Appeal on the grounds of lack of merit. Our Faculty’s Eric Cheung represented the defendant on a pro bono basis with the assistance of our current and former CLE students, and was successful in having the conviction overturned by the Court of Final Appeal, again upon concession by the Department of Justice. Special thanks should be given to ONC lawyers, who have been partnering with us to provide pro bono representation, and to counsel Stephanie TY Lam and trainee solicitor Carmen Leung, our former CLE students who provided helpful assistance in research work on a voluntary basis.

As remarked by Fok PJ who delivered the Court of Final Appeal’s judgment, “It is an example, unfortunately, of how in an adversarial system, particularly where an individual is initially unrepresented at trial, there are cases in which a material point of law is not raised in the courts below. Fortunately, however, with the assistance of pro bono legal representation afforded by the Clinical Legal Education Programme of the Faculty of Law of the University of Hong Kong, the appellant’s case has been pursued to this court and, for the reasons that follow, a wrongly convicted appellant has been able to overturn that conviction on a new point of law raised for the first time in this court.”

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