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Question 1 (40% of this assignment)问题1（本任务的40%）
Rich Company归X夫妇所有。2017年12月24日，X女士参观了公司的经营场所。X夫人最近买了一种特别珍贵的黑色宝石，叫做“黑宝石”，想给X先生和工作人员看看。然而，“noir”不小心掉到铺着地毯的地板上，消失了。X夫人立即在工作人员办理出入境手续的地方贴了一张通知单，要求如果有人找到“noir”，请归还。X夫人失望地离开了。
安妮是富裕公司的一名70岁的清洁工。X太太离开后不久，她又重新开始工作。警方调查显示，她在执行任务期间，在中央电视台看到她带着工作人员证登记入住，从地板上拿起“噪音”，放进包里，退房离开。安妮现在被指控盗窃“noir”。控方有以下证据
安妮：
-闭路电视画面（内容如上）；
-“noir”，从安妮家的包里找到的；
-“Noir”证书，说明其价值和出售给X女士的日期；
-X女士提供的关于“Noir”所有权以及“Noir”如何于2017年12月24日丢失的证据；
-X先生秘书桑迪提供的证据，证明X夫人一贯的奢侈风格和模式。
花钱，还有安妮总是嫉妒地上下打量X太太；
-来自富裕公司保安的证据，他们看到安妮以异常匆忙的方式离开。
安妮为自己辩护说：
-她把“黑鸟”误认为是一块随意的鹅卵石。她把它捡起来是因为她不想让任何人骑着它旅行；
-她把它放在包里，打算把它和其他垃圾一起扔掉，但在她赶回家喂她小孙女的时候忘了，因为她的女儿和女婿都突然被召去工作了；
-她说她不能阅读通知，因为她双眼都有白内障。
Rich Company is owned by Mr and Mrs X. On 24th December 2017, Mrs X visited the company premises. Mrs X had recently bought a particularly rare and valuable black gemstone called “Noir” and wanted to show it to Mr X and the staff. “Noir” was, however, accidentally dropped onto the carpeted floor and went missing. Mrs X immediately posted a notice next to where staff members check in and out of work with their staff cards, asking for return of “Noir” if anyone manages to locate it. Mrs X then left in disappointment.
Annie is a 70-year-old cleaner at Rich Company. She resumed her duty shortly after Mrs X’s departure. Police investigation revealed that during the course of her duty, she was seen on CCTV to have checked in with her staff card, picked up “Noir” from the floor, put it into her bag, checked out and left. Annie is now charged with theft of “Noir”. The prosecution has the following evidence against
Annie:-
- CCTV footage (contents as above);
- “Noir”, which has been recovered from Annie’s bag at her home;
- “Noir”’s certificate stating its value and date of sale to Mrs X;
- Evidence from Mrs X on her ownership of “Noir” and how “Noir” was lost on 24th December 2017;
- 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;
- Evidence from Rich Company’s security guard who saw Annie leaving in an unusually rushed manner.
Annie, in her defence, claims that:-
- She mistook “Noir” for a random pebble. She had picked it up because she did not want anyone to trip on it;
- She put it in her bag, intending to throw it away with other rubbish, but had forgotten after she rushed home to feed her baby granddaughter as her daughter and son-in-law were both suddenly summoned to work;
- She states that she could not read the notice as she has cataracts in both eyes.
MAArbDR/LW6402/Assignment Questions 2
a. Who has the legal burden of proof in this case, and to what standard? Briefly explain the rationale behind this arrangement. (5%)
b. Comment on each piece of prosecution evidence with regard to (i) its classifications and (ii) admissibility. (15%)
c. Is classification relevant to the weight of evidence? If so, how and to what extent? If not,why? (5%)
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%)
Question 2 (60% of this assignment)问题2（本任务的60%）
米妮是一位技艺精湛、经验丰富的雕刻家。她受雇于儿童玩具制造商马丁，用一台专门设计的雕刻机（简称“机器”）制作不同形状的木制拼图。为防止操作员受伤，有两种方法可以停止机器：手动按下紧急停止按钮，或当机器内置软件检测到方向的任何突然或突然变化时自动停止机器。这是为了防止机器在雕刻刀片仍在运行时被撞倒。该机器是由宫崎（香港）有限公司（宫崎骏）设计和生产的。宫崎骏负责马丁机器的定期维护。
一天，米妮在工作时用机器，马丁不小心把机器撞倒了。没有人及时按下急停按钮，机器检测不到方向突变。于是机器就刻进了米妮的手指里。米妮的左食指、中指和无名指立即被切断。米妮立即被送往医院，在那里她接受了手术，重新接上了她的三个手指。由于这次事故，米妮的手指永久僵硬，影响了她的雕刻。
米妮现欲就人身伤害提起民事诉讼，要求赔偿600万港元的损害赔偿金。
Minnie is a skilled and experienced sculptor. She was hired by Martin, a manufacturer of children’s toys, to produce wooden puzzles of different shapes using a specially designed carving machine(the “machine”). To guard against injuries to the operator, there were two ways of stopping the machine:either by manually pressing the emergency stop button, or automatically when the machine’s inbuilt software detects any sudden or abrupt change in direction. This is to prevent the machine from being knocked over when its carving blades are still in operation. The machine was designed and produced by Miyazaki (Hong Kong) Limited (“Miyazaki”). Miyazaki is responsible for regular maintenance of Martin’s machine.
One day, when Minnie was using the machine at work, Martin accidentally knocked over the machine. No one pressed the emergency stop button in time, and the machine failed to detect the sudden change in direction. Hence the machine carved into Minnie’s fingers. Minnie’s left index, middle and ring fingers were immediately severed. Minnie was immediately sent to hospital where she underwent surgery to reattach her 3 fingers. As a result of this accident, Minnie was left with permanent rigidity in her fingers which affected her sculpting.
Minnie now wishes to lodge a civil action for personal injury to claim damages in the sum of HK$6 million.
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%)
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 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.
c. What can Minnie do to preserve the machine? Outline the procedure she would have to |
