LW5606A Lecture No.

1 Introduction to Criminal Law / General

Principles: Actus Rues & Causation
(Chapters 1, 2 and 3 of Jackson, Criminal Law in Hong Kong)

4 questions on the exams 1st question is mandatory remaining 3 picks 2 questions. focus on
ppt. and lecture notes (don’t look at past paper)
He’s a IRAC’s guy, state the definition of the crime in the rule citing case in the app

didn’t do it
not mens rea, no coincide, it’s an accident
justified
excuse (intoxication, necessity)

1. Introduction.

In this lecture we will look at the definition of a crime, examine the ingredients of crime and
look at questions of intention.

Whilst Hong Kong’s criminal law is modeled upon the criminal law of England, HK courts
have not been bound by the case law of England/United Kingdom since 1997. (See the case
of A Solicitor v The Law Society of Hong Kong (FACV 24/2007) where the Court of Final
Appeal explains the relationship between the courts of Hong Kong and the courts of
England/UK both before and after 1997.

We must pay attention to developments in criminal law in Hong Kong. That means looking at
HK legislation and HK cases. HK cases are available electronically through the web-site of
the Judiciary www.judiciary.gov.hk and through the HKLII web-site www.hklii.org and
continual use should be made of those facilities.

2. What is criminal law?

We now look primarily to Ordinances for criminal offences though some crimes are still
found in the common law. The judges use the common law principles in interpreting and
applying the criminal law found in the Ordinances.

Increasingly these days, concepts of human rights and civil liberties are coming into play
when we consider criminal liability.
We can note, for example, the tensions and possible conflicts between anti-terrorism laws and
individual liberties and human rights: stop and search, detention without charge, covert
surveillance, restriction orders, house arrest and deportation.

The criminal law is simply the body of law found in the Ordinances, at common law and in
the decisions of the courts which determines whether an act or an omission to act is, or is not,
a crime.

The Criminal Law is a branch of public law in the sense that it applies to us all. It governs the
relationship between private individuals and the State, even though the victims of crime may
be private individuals.

The main purpose of the Criminal law is to safeguard and maintain public peace and the good
order of society.

Though an ordinary person can bring a private prosecution, it is the State that takes action
where there is an alleged crime in the form of a prosecution commenced by an agency having
a law enforcement role, e.g the police or ICAC.

To that extent a crime is an offence against society in general: the concept of the breach of
the peace or an interference with the stability of society which society needs if it is to prosper.

Criminal cases are brought in the name of the HKSAR, thus HKSAR v Wong.

A crime is an act, or sometimes an omission to act, which the law maker or the common law
judges (with the approval of the state) have decided is wrong and which deserves punishment
from the State. We must impose the rider with the approval of the state, because the state is
the sovereign law maker. If the sovereign law maker does not like what the judges are doing
the state can change the law. The rule is that the judges do not make the law, though
sometimes in interpreting the law laid down in an ordinance it looks very much as though the
judges are legislating.

The criminal law is only one part of the criminal justice system. We also need to consider the
Law of Evidence, the Law of Criminal Procedure and the structure and purpose of the
Criminal Justice Systems as a whole. The Law of Evidence, the Law of Criminal Procedure
and an understanding of the Criminal Justice System as a whole tells us how criminal
prosecutions are commenced and processed and the procedure involved proving allegations
of crime.

Criminal Procedure deals with the methods used to deal with people accused of committing a
crime, when they can be searched, when evidence can be seized, how witness can be brought
to court and the procedure at the trial. Criminal procedure is where search and seizure and
arrest laws come into play. It deals with a defendant's individual and constitutional rights,
which include the right to remain silent, the right to a speedy, public trial, the right to be
represented by a lawyer, and the defendant's right to confront his or her accuser.

The Law of Evidence tells us what material can be used in a trial in an attempt to prove the
guilt of a person charged with a criminal offence: it is sometimes called the science of proof.

The Criminal Justice System tells us about e.g. the role of lawyers and other persons involved
in criminal justice, theories of reasons for crime, purpose of sentencing, all of which provide
an understanding of the operation of substantive criminal law.

3. What are the objectives of criminal law?

The American Law Institute’s Modern Penal Code states the objectives or purposes of
criminal law are:
a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or
threatens substantial harm to individual or public interests;
b) to subject to public control persons whose conduct indicates they are disposed to
commit crime;
c) to safeguard conduct that is without fault from condemnation as criminal;
d) to give fair warning of the nature of the conduct declared to be an offense;
e) to differentiate on reasonable grounds between serious and minor offences.

We can look at this statement in the context of the duties of police officers set out in s.10 of
the Police Force Ordinance, Cap. 232.

The most often stated purpose of the criminal law is to maintain public order and security, a
sweeping phrase meaning that a certain minimum level of security from the acts of criminals
is needed if a society is to function in the best interests of those who make up that society.
This includes the fundamental protection of personal and property rights.

4. Definitions of Crime.
Various definitions have been suggested, these often are based upon, or at least take account
of the purpose or objectives of the criminal law. Two suggested definitions are:

a) A crime is an act or an omission to act which directly and seriously threatens the
security and well being of society which either legislation or the Common Law has
specified as wrong so that it is punishable by the state

A private citizen can bring a prosecution for a criminal offence but in practice prosecutions
are brought by the recognized law enforcement agencies acting on behalf of the State, the
State apparatus takes over, the ‘victim’ is not in control of the process. (Note however the
increasing tendency these days for victim statements to be put before a court when it comes
to sentencing.)

In civil wrongs e.g. contract and tort, only the injured person can sue, the law leaves it to the
injured person to decide whether or not to take action. The individual is in control of the
proceedings. This is, it is suggested, not appropriate for criminal situations: how would there
be action in victimless crime for example drug taking?

Note that sometimes the same act can be both a crime and a civil wrong. A road accident can
lead to the prosecution of a driver for dangerous or careless driving and to an action in tort
(trespass to the person) for compensation for injuries and loss arising from the accident.

b) A crime is an act that is morally wrong. But the enforcement of morality is not a proper
object of the criminal law.

We can consider offences of misconduct in public office as involving morally wrong conduct
or at least reprehensible conduct: e.g. the case of a police officer who entertained his
girlfriend in the back of his police car whilst he was on duty. However the conduct which
some people might term ‘morally wrong’ is not what is being sanctioned, it is the effect of
that conduct on the performance of the public duty and the inappropriate use of property
belonging to the state.

But the element of morality does come into it to some extent because unless the majority of
the population considers that an act is deserving of punishment by the State, there will not be
respect for the law that makes doing that act a criminal offence.
If there is not respect for the particular law its enforcement becomes more difficult than it
otherwise would be. The state then has to consider whether it is ‘practical’ to continue that
law or whether the conduct the law was aimed at should be de-criminalised.

It could be said that an act, or an omission to act, is criminal in nature if it attracts a legal
response (i.e. a response laid down either by an ordinance, or by the common law). That
response comes usually from the State. A particular body may however be given a response
role, for example the corporations operating the Cross Harbour Tunnel or the MTR, can
prosecute offences committed on its own property.

5. Classification of Criminal Offences.

There is a threefold classification of offences in Hong Kong which depends upon the
seriousness and the likely punishment upon conviction.

a) Offences triable summarily only: the least serious, which can only be dealt with in
the Magistrates’ Court. An example is careless driving (s.38 Road Traffic Ordinance,
Cap. 374) or gambling in a street (s. 13 Gambling Ordinance, Cap. 148).

b) Offences triable either way (summarily or upon indictment): the middle category of
crime which can be dealt with in the Magistrates’ Court, in the District Court or in the
Court of First Instance. An example is robbery (s.10 Theft Ordinance, Cap. 210).

c) Offences triable only upon indictment, the most serious cases, can only be dealt
with in the Court of First Instance of the High Court. An example is murder (contrary
to common law).

There is sometimes said to be a fourth category, that of a “dual offence” where the offence is
the same but the Ordinance specifies a more severe penalty if the offence is dealt with upon
indictment rather than summarily. An example of this is seen in the Road Traffic Ordinance
Cap. 374, s 37(1) of which provides:
A person who drives a motor vehicle on a road dangerously commits an offence and is
liable-
(a) on conviction on indictment to a fine at level 4 and to imprisonment for 3 years;
(b) on summary conviction to a fine at level 3 and to imprisonment for 12 months.
“dual offence” should be viewed as created two offences, one triable summarily by a
magistrate and the other triable on indictment.

See Chiang Lily v Secretary for Justice (CACV 55 and 151/2009, [2009] HKEC 1562) for a
full discussion on the classification of criminal offences and their mode of trial in Hong
Kong.

6. Elements of crime.
The criminal law does not (as yet) punish people for their thoughts. The basic principle is that
an act does not make a person legally guilty unless the mind is also blameworthy: the concept
being that the mind must go with the act. This means that two elements are generally required
before a crime can be committed.
These elements are: a) the actus reus, the act or omission on the part of the defendant and

b) the mens rea, the mental state required for the commission of the
crime.
7. Actus Reus and Mens Rea

To find out what actus reus and what mens rea is needed we must look at the definition of the
offence in the Ordinance creating the offence or at the common law definition.

In general a person cannot be convicted of a crime unless the prosecution have proved both
the required actus reus and the required mens rea.

A might kill B, for example by shooting him. In that situation there is apparently the actus
reus of murder. There is the killing of a person and the killing appears to be unlawful.

The fact of a death however does not automatically mean there will be a conviction for, or
even a charge of, murder.

The (simple) definition of murder is “an unlawful killing of a person with intent to kill or to
cause serious bodily harm.”

A could not be convicted of murder if the act was an accident: there is an absence of the
necessary guilty (or criminal) intent (the mens rea).We will leave aside for the time being
whether an accidental killing might be manslaughter or a breach of some other law: we
simply make the point about the need for the actus reus and the mens rea to coincide.
8. Proving Criminal Liability

The general principle at common law is that it is for the prosecution to satisfy the tribunal of
fact (judge or jury) of the guilt of the person accused of the crime. That in general means that
the burden of proof is on the prosecution in respect of each and every element of the offence
charged. Woolmington v DPP [1935] AC 462.

The common law proceeds on the adversarial system, the defence generally has nothing to
prove and the accused is presumed to be innocent until proved guilty.

This presumption of innocence is confirmed in Article 87 of the Basic Law and Article 11(1)
of the Bill of Rights. In HKSAR v Lam Kwong Wai [2005] HKEC 26; [2006] 3 HKLRD
808; (2006) 9 HKCFAR 574 the Court of Final Appeal remarked that:

“As the right to be presumed innocent is an essential element in the individual’s right to
a fair trial and is protected expressly, along with the right to a fair trial, by art.87(2) of the
Basic Law, it is convenient to examine the alleged violations of the two rights in the context
of contravention of the presumption of innocence.  In this respect, it has not been and could
not be, suggested that there is any difference between the presumption of innocence as it is
protected by the Basic Law and the Bill of Rights.  In each case, the right to be presumed
innocent, as one of the rights and freedoms which are constitutionally guaranteed and lie at
the heart of Hong Kong’s separate system, is to be given a generous interpretation, one that
takes account of the interpretation given to it by international and national courts and
tribunals.”

See also the Privy Council decision in A-G of HK v Lee Kwong Kut [1993] AC 951 which
decided that the offence of possessing anything reasonably suspected of being stolen, without
giving a satisfactory account, contravened Article 11 of the Bill of rights because it placed the
burden on the defendant to prove that his possession of the property was innocent.

If the prosecution is to prove criminal liability it must produce evidence which is sufficiently
cogent to persuade the tribunal of the guilt of the accused with certainty; sometimes referred
to as “proof beyond reasonable doubt”.

As a general rule, the same principle applies to defences: it is for the prosecution to disprove,
or negative, defences (as, for example, where the accused states that the act was done in self-
defence)
There are some exceptions to these general rules. The principal exceptions are:

(a) Insanity. Where the accused raises a defence of insanity, the burden to prove
insanity is upon the accused. (R v McNaghten (1843) 10 Cl & F 200)
(b) Statutory exceptions. These occur where the legislature expressly places a burden
of proof upon the accused. See for example s 3 Homicide Ordinance, (Cap. 339),
where the accused has the burden of proving the defence of diminished
responsibility
(c) Negative averments. Where the accused wishes to rely on the existence of a
licence or permit as a defence. See s. 94 Criminal Procedure Ordinance, (Cap
221.)

Where the burden of proof is on the prosecution, it is for the prosecution to establish each and
every element of the offence charged beyond reasonable doubt: the requirement of certainty.

Where the defence bears the legal burden of proving a particular issue (such as insanity), the
standard of proof is on a balance of probabilities (i.e. more likely than not.).

An ‘evidential burden’ is a burden to introduce evidence; it is not a burden of proof. It arises,

for example, where the accused wishes to rely upon a defence such as automatism, self-
defence or duress. Before such a defence can be relied upon, the accused must put forward
some evidence for the defence in question.

9. Criminal and Civil Liability.

The criminal law punishes the offender.

The same act can be a crime and a civil wrong. A civil wrong is one which entitles to
wronged person to bring an action for compensation.

The victim of an assault, for example, could bring an action in the civil courts seeking
compensation for the loss, the pain and suffering etc. Similarly a road accident can result in
the prosecution of the vehicle driver for careless or dangerous driving and a subsequent civil
claim for compensation by the injured person, or by dependants in a death situation.
The criminal courts do not normally award compensation because its procedures are not
geared to working out compensation and if the defendant is imprisoned he will be unable to
work and so probably unable to pay anything. However where the calculation is relatively
straightforward and there is money available e.g. from cash bail, the criminal courts do order
compensation: see s. 73 (3) Criminal Procedure Ordinance, Cap 221 and s. 98 Magistrates
Ordinance, Cap. 227.

Where a victim of crime is not compensated by orders made in criminal proceedings he can
pursue a claim for compensation in the civil courts. In recognition that many offenders
simply do not have resources to make them worth suing, there are such schemes as the
Criminal Injuries Compensation Board where the government provides limited compensation
for victims of violent crime.

Civil claims for compensation do not depend upon the offender being convicted, though a
conviction in a criminal court makes the proof in the civil courts so much easier.
10. Sources of Hong Kong’s Criminal Law

Hong Kong’s criminal law is based upon the criminal law of England because of Hong
Kong’s history.

The common law of England applies here despite the reversion of sovereignty in 1997
because the Basic Law (Articles 8 and 18) provides for the law in force as at 30 th June 1997
to continue to apply in Hong Kong.

Some offences are still common law offences. Murder is an example, as is kidnapping (note
though the distinction between common law kidnapping and the forcible detention of a
person to secure a ransom for their release under s. 42 Offences Against the Person
Ordinance, (Cap.212). Murder is not defined in an Ordinance in Hong Kong. It is an offence
at common law meaning that we have to look for its definition in previously decided cases.

Most criminal law is in the Ordinances enacted by the Hong Kong legislature. These
Ordinances will usually follow the form and wording of a British Act of Parliament, certainly
up to 1st July 1997.

When we are dealing with a question of criminal liability, for example whether a theft has
been committed we will go the source material. In the case of theft we need to look at the
Theft Ordinance Cap. 210. We see there in section 2, the definition of theft:

1) A person commits theft if he dishonestly appropriates property belonging to another with

the intention of permanently depriving the other of it; and "thief" ( 竊賊 ) and "steal" ( 偷竊 )
shall be construed accordingly.

(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the
thief's own benefit.

We will then apply the principles of statutory interpretation and look at previous cases to see
how the particular provisions of the Ordinance have been applied by the courts

11. Hong Kong’s Courts.

The trial courts with criminal jurisdiction are the Magistrates’ Court, the District Court and
the Court of First Instance of the High Court.
These are all first instance trial courts.
The Juvenile Court is a branch of the Magistrates Courts that deals with juvenile offenders.
The age of criminal responsibility in HK is 10. (s. 3 Juvenile Offenders Ordinance, Cap. 226.)
The Juvenile Court has jurisdiction in criminal cases over persons between the ages of 10 and
16 except in cases of homicide (murder and manslaughter). (s 3A (3) Juvenile Offenders
Ordinance, Cap 226).

Some cases can only be dealt with by a magistrate: the offences which are referred to as
triable only summarily in the Ordinance creating the offence. Others, the most serious such as
murder, rape, can only be dealt with on indictment in the Court of First Instance (High
Court). Other offences, e.g., robbery, can be tried in either court depending upon the
seriousness of the offence and the likely punishment upon conviction. These are called
indictable offences triable summarily.

Where an offence is indictable but triable summarily, the prosecution decides in which court
the case will be tried. The criterion is the likely sentence upon conviction after trial.
The Court of First Instance has an appellate jurisdiction from Magistrates’ Court. Appeals
from the District Court and from the Court of First Instance go to the Court of Appeal.
Appeals from the Court of Appeal or from a High Court judge sitting on appeal from the
Magistrates’ Court can (in certain circumstances) go to the Court of Final Appeal.

12. Jurisdiction

Criminal law is traditionally territorial: this is it applies to offences against the law of the
territory committed within the territory by persons who are present within the territory.

A good example of this principle is seen in R v Remy Martins Duggam CACC000096/1995

[1995] HKCA 311.

For two cases on jurisdiction which involved fish farms, see A.G. v Li Ah-sang Application
for Review No. 10 of 1995 and R v Tse Hing San and Others Magistracy Appeal No 1395 of
1996 (both cases may be accessed through HKLII).

Inroads have been made into the territoriality principle to reflect the increasingly international
scope of criminal activities and the ease with which persons can travel these days. An
example is section 9 of the Offences Against the Person Ordinance, Cap 212, which provides:
Where any person being unlawfully stricken, poisoned, or otherwise hurt at any place in
Hong Kong dies of such stroke, poisoning, or hurt upon the sea or at any place out of Hong
Kong, every offence committed in respect of any such case, whether the same amounts to the
offence of murder, or of manslaughter, or of being accessory to murder or manslaughter,
may be dealt with, inquired of, tried, determined, and punished in Hong Kong in which such
stroke, poisoning, or hurt happens, in the same manner in all respects as if such offence had
been wholly committed in Hong Kong.

Another example of extra-territoriality appears in s. 5 of the same Ordinance which provides

that:

All persons who within Hong Kong conspire, confederate, and agree to murder any person,
whatever his nationality or citizenship and wherever he may be, and any person who within
Hong Kong solicits, encourages, persuades or endeavours to persuade, or proposes to any
person to murder any other person, whatever his nationality or citizenship and wherever he
may be, shall be guilty of an offence and shall be liable to imprisonment for life.

The Criminal Jurisdiction Ordinance Cap. 461, section 2, also extends HK’s jurisdiction over
a number of offences under the Theft Ordinance, Cap. 210, and forgery and related offences
under the Crimes Ordinance, Cap 200 where there is an extra-territorial element.

Piracy and aircraft hijacking are triable in Hong Kong, in certain circumstances, even though
the activity occurred outside the territory of Hong Kong. (See s 20 Crimes Ordinance (Cap
200) for piracy and s 8 Aviation security Ordinance (Cap 494) for aircraft hijacking.

13. Introduction of Actus Reus

If we are to base criminal liability on a fault principle, logically someone should not be
punished unless they have committed the prohibited act and there was the intent to do that
act.

To find out what is the prohibited act we need to look at the common law definition of the
offence or, more likely now, the definition of the offence in the Ordinance criminalising the
conduct in question.

We need therefore to have the conduct, the act, the actus reus. Actus reus means simply ‘The
act or omissions that comprise the physical elements of a crime as required by statute.’ See,
e.g. Schad v. Arizona, 501 U.S. 624. We will expand upon that basic definition later but
essentially what actus reus embraces is the factual element of the crime.

We also need to have the necessary mental state required by the definition of the offence, the
mens rea. Mens rea is ‘The state of mind indicating culpability which is required by statute as
an element of a crime. See, e.g. Staples v. United States, 511 US 600 (1994). We should add
to that definition ‘or by common law’.

As a general rule for criminal liability we need a coming together of the actus reus and the
mens rea.

This is summed up in the Latin phrase “ACTUS NON FACIT REUM, NISI MENS SIT
REA” which, translated, means “An act does not make a man guilty of a crime, unless his
mind be also guilty.”

It is a general principle in criminal law that for a person's guilt to be established it must be
shown that the defendant possessed the necessary mens rea at the time the actus reus was
committed - in other words the two must coincide. This is also known as the
contemporaneity rule.

We do not punish people who are not responsible for their actions, nor do we punish people
for their thoughts. The principle is therefore that criminal liability is based upon a voluntary
act, an act of one’s own volition

We can now look at actus reus and mens rea in more detail. In doing so we will be looking at
a number of cases.

14. ACTUS REUS

Actus reus (from Latin, "guilty act") is the action (or inaction, in the case of crimes which are
sometimes called acts of omission) which, in combination with the mens rea ("guilty mind"),
produces criminal liability in common law based criminal law jurisdictions.

Actus Reus is the guilty conduct, the external manifestation of the offence. We find what that
is from the definition of the offence.
Actus reus is the conduct of the accused. It can be an act of commission or act of omission,
and it must be a voluntary act that causes the damage or harm. It can also be a series of acts
or a state of affairs.

It can be an act of commission or act of omission. A person may incur criminal liability for
failing to do that which the law requires him to do as much as by doing that which the law
prohibits. Generally the emphasis is upon acts of commission; it is only in limited
circumstances that a person is criminally liable for an act of omission.

The actus reus includes the state of affairs or circumstances surrounding the commission of
the offence, together with the results or consequences (if any) that flow from that act or
omission. It is essential that the defendant acted voluntarily and that he caused the injury,
damage or harm.

The actus reus includes all the elements of the offence indicated in the
definition except the mens rea (the state of mind), if any.

This also brings us into questions of causation: did the act of the defendant bring about the
prohibited consequences?

The actus reus of an offence may include:

a) an act or series of acts – see Fagan v MPC [1969] 1 QB 439; R v Church [1966] 1
QB 59; Thabo Meli [1954] 1 WLR 288.

Where the actus reus involves a continuing act a later mens rea during its continuance
can lead to a coincidence of the actus reus and the mens rea sufficient for criminal
liability. The courts have treated a chain of events (i.e., a continuing series of acts) to
be a continuing actus reus for the purposes of the criminal law. If the actus reus and
the mens rea are both present at some time during this chain of events, then there is
liability. It must be a voluntary act, not an involuntary act.

The crime must be caused by some conduct by the accused. That conduct need not be
a direct cause of the crime, but can be through the agency of others. The conduct need
not be the sole cause of the crime, provided it cannot be dismissed as trivial.
b) an omission

i) Generally there is no liability for a failure to act and no liability or obligation upon
anyone to prevent harm or wrongdoing. If D sees V drowning and is able to save him
but decides not to do so and V is drowned, D has committed no offence.

ii) D becomes liable only where he or she is under a common law or a statutory duty
to act and where a failure to act amounts to a breach of that duty – R v Stone &
Dobinson [1977] 1 QB 354; R v Gibbons & Procter (1918) 82 JP 287. Also note here
the substantial extension of manslaughter by gross negligence since R v Adomako
[1995] 1 AC 171.

iii) D may be under a duty to act where he or she has created the dangerous situation –
see R v Miller [1983] 1 All ER 978 (HL)

c) a state of affairs

Generally conduct giving rise to criminal liability must be voluntary, but occasionally
D may be guilty simply by finding himself in a particular situation which he has not
himself created. See R v Larsonneur (1933) 149 LT 542; Winzar v Chief Constable
of Kent (1983) Times 28 March.

15. Actus reus and incomplete crimes

According to criminal jurisprudence, there must be a concurrence of both actus reus and
mens rea for a crime to have been committed.

But what about crimes such as attempts, conspiracy and counselling where the intended
offence is not committed? Can there nonetheless be criminal liability?

There is a category of crimes that are sometimes called "incomplete crimes" or “inchoate
offences” where the concept of an act is interpreted to include crimes that are not only those
crimes that completely carried out but are partially completed. It might be said that in just
planning to commit a crime there is no act.

The first group of incomplete crimes are the attempted crimes, such as attempted murder such
as when someone points a gun at a person, fires and does not hit the intended victim, killing
no one. Even though the actus reus has not been completed, the intent and the factual actions
designed to bring about the intended result amount to an attempt, which is considered a
criminal act in itself, and are sufficient to impose criminal liability. The criminal law intends
to prevent the commission of offences just as much as to punish offences when they are
committed. There would be a serious loophole in the criminal law if it did not provide for the
punishment of attempts to commit crime.

In Hong Kong an attempt to commit a crime is in itself an offence, punishable as if the

complete offence had actually been committed. (Sections 159G and 159J of the Crimes
Ordinance (Cap 200)).

There is therefore no problem with attempted offences, though we may get into difficulties in
deciding what conduct actually amounts to an attempt. The question is essentially what act is
sufficient to make the attempt more than just preparation to commit a crime.

There may also be criminal liability even where there is an attempt to commit a crime that is
impossible, such as attempting to steal from an empty cash register or an empty pocket.
Another example is the attempt by someone to steal his own umbrella (thinking it was
someone else's umbrella).

As we will see later on in the course conspiracy to commit a crime is in itself a criminal
offence even if the (planned) crime is not carried out.

Similarly counselling (asking) another person to commit a crime or inciting another person to
commit a crime are in themselves criminal offences.

16. Causation

D can be liable only for the prohibited consequences of his or her act if his or her conduct
was both a factual cause and a legal cause of that act. Causation is relevant to “result”
crimes such as homicide (murder, manslaughter etc.) wounding and criminal damage.

In order to secure a conviction the prosecutor must prove that the accused caused the result
(brought about the consequence).

In murder, the defendant causes the death of the victim. The result or consequence is the
death. Therefore, some crimes are referred to as 'result' crimes. In these crimes, the offence
specifies the consequence.
Another example is assault occasioning actual bodily harm. The causing of the harm is the
consequence.

Causation has to be established before questions of intent need to be answered, see the
discussion in HKSAR v Chan Man Lok & Others [2003] HKCA 159 (CACC000522/2000 the
‘Hello Kitty’ case) (HKLII).

16.1 Factual Causation

It must be established that the consequence would not have occurred as and when it did but
for the accused’s conduct, (the ‘but for’ or the ‘sine qua non’ test).

If the consequence which has happened would have occurred anyway irrespective of the act
of the accused, then the act of the accused has not brought about that consequence.

An example of this is seen in R v White [1910] 1 KB 124. W put cyanide into his mother’s
drink but she died of heart failure before the poison took effect. The ‘but for test’ is not
satisfied, she would have died anyway irrespective of W’s act. W’s act of putting poison into
the drink had not, in fact, brought about the desired and intended death because of the
intervention of natural causes. Undoubtedly though, the defendant would be guilty of
attempted murder.

16.2 Legal Causation

Causation in law (sometimes called imputable causation) is required in addition to factual

causation.

Causation in fact does not always mean there will be causation in law.

Causation in law can be established by showing that the defendant's act was an 'operative and
substantial' cause of the consequence and that there was no intervening event.

Legal causation exists if the result was reasonably foreseeable.

Another way to show that defendant's act was the 'operative and substantial' cause in law is to
ask if the result was a reasonably foreseeable consequence of the defendant's act.
D’s act must be more than de minimis i.e. D’s contribution to the result (e.g. death on a
charge of murder) must be more than minimal. The act must be a significant cause of the
result. See R v Malcherek; R v Steel [1981] 2 All ER 422 (two separate cases involving
victims who were kept alive on life support machines that were switched off.) The original
injuries were held to be an operating and substantial cause of death. The switching off of the
life support machines was simply recognition of reality and not the operative cause of death.

In a case of murder it does not matter that the victim is about to die from some other cause. If
D does an act which causes the death he will be guilty of murder even though the victim will
inevitably die from the other cause. Thus in R v Adams [1957] Crim L R 365 the judge
directed the jury that if the defendant (a doctor) administered pain killing drugs to a
terminally ill patient knowing that this would shorten the life of the patient, he would guilty
of murder.

D’s act need not be the only cause of injury to the victim. As the accused must “take his
victim as he finds him”, both in body and mind, the fact that the victim hastened his own
death e.g. refusing life-saving medical treatment, will not exonerate the accused from liability
for the death. See R v Blaue [1975] 3 All ER 446 where the victim refused to receive a blood
transfusion which would have saved her life.

'Substantial' means more than something very trivial, more than something that the law
considers de minimis. Contrast a deep cut and a pin prick (both constitute wounds).

‘Operative’ - An 'operative' cause does not have to be the ‘sole or main’ cause of the
specified consequence.

16.3 Intervening acts or omissions – Novus Actus Interveniens

The question is whether the novus actus (the new act) is sufficient to break the chain in
causation.

If the defendant's act merely provided the setting in which some other cause operated the
chain of causation would be broken, see e.g. R v Jordan (1956) 40 Cr App R 152, where the
victim of an assault received “palpably wrong” medical treatment and died.

Medical treatment will break the causal link if the original injury is “merely the setting” or
“part of the history” from which the treatment arose. R v Malcherek; R v Steel [1981] 2 All
ER 422, R v Jordan (1956) 40 Cr App R 152.
Negligent medical treatment will break the chain of causation only in exceptional
circumstances. See R v Smith [1959] 2 QB 35. As a matter of policy this plea is seldom
successful

An original assailant cannot escape liability for murder where his victim dies by showing that
his victim received inadequate, or negligent medical treatment, unless that medical treatment
is grossly negligent.

Victims sometimes neglect their wounds, or others may neglect them. Such neglect will not
break the chain of causation, see e.g. R v Blaue [1975] 3 All ER 446.

The defendant is not liable for the result where the act or event was not the natural
consequence of D’s act or could not have been reasonably foreseen.

But a reasonable act performed for the purposes of self-preservation and caused by the
accused’s own acts does not constitute a novus actus.

In R v Pagett (1983) 76 Cr App R 279 D was found guilty of manslaughter of a girl. He held
the girl hostage in front of him when he fired at armed police officers who fired back, killing
the girl.

Negligent actions of the victim may contribute to the resulting injury but D may still be liable
where he has caused the victim to flee. See R v Mackie (1973) 57 Cr App R 453; R v Roberts
(1971) 56 Cr App R 95.

If the chain of causation is broken, this will not relieve the accused from liability for the
initial attack. For example, an accused would still be liable for the initial assault in a case
where the victim died but such death was not “caused” by the accused.

16.4 The Egg shell (or thin) skull rule (or you take your victim as you find him or her)

The 'thin skull' rule says that the defendant must take his victim as he finds him.

Therefore, even if injury or death is not reasonably foreseeable the law still considers the
defendant liable if the victim suffered from some physical or mental condition that made him
or her vulnerable.
The term ‘egg shell’ or 'thin skull’ rule is based on the reality that if you attack a person who
has such a skull, the defendant should be liable. It is not the victim's fault that he was not
blessed with a more substantial skull. The criminal law is designed to prevent violence.

17. Additional Cases

R v Hayward (1908) 21 Cox CC 692

R v Hennigan [1971] 3 All ER 133
R v McKechnie (1992) Crim LR 194
R v Williams & Davis [1992] Crim LR 198
R v Mellor [1996] Crim LR 743
R v Corbett [1996] Crim LR 594
R v Dear [1996] Crim LR 595
R v Kennedy [1999] Crim LR 65
R v Marjoram [2000] Crim LR 372
R v Carey [2006] EWCA Crim 17
LW5606A Lecture No. 2 MENS REA – INTENTION – RECKLESSNESS –
NEGLIGENCE / Coincidence of Actus Reus and Mens Rea / Transferred Malice

(Chapter 4 Jackson)

1. Introduction

We have already noted the general common law rule: “Actus non facit reum, nisi mens sit
rea” “an act does not make a person guilty unless the mind is guilty”.

As we have seen, actus reus is the factual element, the external manifestation of the crime.

Now we need to look at “mens rea” – the concept of “guilty mind”, “state of mind”, “fault’,
or “blame”.

Once it can be shown that D is responsible for the physical constituents of the alleged offence
it then necessary to demonstrate that he is also mentally responsible for those acts. Generally
it must be shown that D is mentally responsible for all the different elements of the actus
reus. There are certain types of crime (strict and absolute liability offences) where the
prosecution need not prove mens rea and we will look at those later on in the course.

When determining the mens rea of an offence, the question which needs to be asked is what
type of mens rea is required for the offence in question?

The law works from the basis that the mental responsibility of the accused can be placed into
three broad categories:

Intention
Recklessness
Negligence

However, an Ordinance or a statute may expressly or impliedly stipulate that other specific
types of mens rea must be proved for specific offences. For example the statute may
expressly provide that the offence must be committed:

“Maliciously”
“knowingly”
“wilfully”
Or alternatively, a statute may imply that no mens rea is required in which case the offence
would be one of “strict liability” which we will look at later.

The mental element of various crimes differs widely and the general classifications of mens
rea are broad by definition. In some circumstances the actus reus of an offence may require
differing types of mens rea for different parts of the actus reus e.g. intention in the sense of
knowledge of the surrounding circumstances but recklessness as to the consequences of the
act.

Whatever the mental state required, its proof is initially based on the presumption that
persons intend the consequences of their acts(s). This is only one aspect of the approach that
courts and juries should take in considering the proof of criminal intent. They must be
guided by s.65A of the Criminal Procedure Ordinance which provides:

(1) A court or jury, in determining whether a person has committed an offence-

(a) shall not be bound in law to infer that he intended or foresaw a result of his
acts or omissions by reason only of its being a natural and probable consequence
of those acts or omissions; but
(b) shall decide whether he did intend or foresee that result by reference to all the
evidence, drawing such inferences from the evidence as appear proper in the
circumstances.
(2) In this section, "court" (法庭) includes the District Court and a magistrate.

This makes it clear that intent is to be established by the jury (or judge sitting alone) looking
at all the circumstances and then deciding what was actually (subjectively) in the mind of the
accused and not (objectively) what must have been in the mind of the accused.

That the consequence that has occurred was objectively a virtual certainty from the act of the
accused does not mean it was actually intended by the accused though it is very strong
evidence that it was intended. See the case of Chan Wing Sui v R [1985] A.C. 168 (PC) in
which it was said: “The test of mens rea is subjective. It is what the individual accused
contemplated that matters. As in other cases where the state of an accused’s mind has to be
ascertained, this may be inferred from his conduct and any other evidence throwing light on
what he foresaw at the material time including [any explanation he gives in evidence or to
the police]”
Ignorance of the criminal law is no defence, but a mistake of civil law may be a defence to a
criminal charge, provided it negates the mens rea for the offence in question.
2. Intention
This traditionally is said to indicate the need to prove foresight of consequences with desire
to produce them. However, this simple definition does not distinguish between situations
where the consequences are foreseen as certain, probable or possible. Furthermore it fails to
deal with the situation where the accused foresees that consequences will be produced by his
conduct but does not desire them.

3. Defining Intention

The term mens rea refers to the mental element in the definition of a crime. This is not some
abstract mental process; it refers to specific words in the charge or indictment.

The following words are all examples of the mens rea that is required for criminal liability in
various common law or statutory offences:

'intentionally', 'knowingly', 'recklessly', 'maliciously', ‘carelessly’, ‘dishonestly’.

Each word has a different meaning, though they are all examples of the intent needed to
commit certain crimes. It is not possible to simply identify them as mens rea and leave it like
that. We need to look at the source material in each case.

The narrow meaning of intent is simply that D intended the consequence of his actions, see R
v Steane [1947] KB 997.

However, the more common application of the meaning of intention is wider in its reach, thus
D can still be regarded to have intended the consequences of his act even where he does not
desire them. He can intend those results where they are not the object or purpose of his
conduct. This wider interpretation given to the meaning of intention can be seen by the view
of the court in R v Mohan [1975] 1 QB 1:

“a decision to bring about, insofar as it lies within the accused’s power, the commission of
the offence which it is alleged the accused attempted to commit, no matter whether the
accused desired that consequence of his act or not.”

How can D “intend” the consequences without them being his “desire” or “object”?
Before R v Hyam [1975] AC 55 D could intend the consequence if he possessed knowledge
or foresight that his conduct was almost certain to result in the consequence, so that it would
be brought about.

In Hyam the test was extended to include liability for those situations where the result might
occur – they were highly probable. But the term “might” was not defined so the degree of
foreseeability was left uncertain.

Although Hyam remained the main authority on intention due to the unsatisfactory nature of
the test many courts failed to follow the direction. See R v Mohan [1975] 1 QB 1, Leung Kam
Kwok v R [1986] HKLR 188

It was not until R v Moloney [1985] AC 905 that the test was re-defined and it was held that
even where death was a “natural and probable” consequence and even “highly likely” this did
not necessarily prove that D intended the consequences of his act. The court also held that
foresight of consequences was not the same as intention. Foresight was merely evidence that
D intended the results of his acts.

In Moloney D received a friendly challenge from his stepfather to see who was "quicker on
the draw" with shotguns. Both men were drunk, but good friends. D shot and killed his
stepfather, although he claimed he had no intention to do so and did not appreciate that the
gun was aimed at the victim.

Held: D was not guilty of murder as a person only intends the result of an act if his purpose
is to bring about that result. As D did not intend to kill his stepfather, he was not guilty of
murder. The defendant was guilty of manslaughter only.

The test to be applied following Moloney was:

Was death or serious injury [in a murder case] a natural consequence of D’s voluntary act?

AND

Did the defendant foresee that consequence as being a natural consequence of his act?

In R v Hancock & Shankland [1986] 2 WLR 357 – the test from Moloney was amended to re-
introduce the need to refer to “probability”. In determining D’s intention foresight of a
natural consequence was not enough. The jury need to consider not only whether
consequence was natural but also whether it was probable and further, the degree of
probability:

“the greater the probability of a consequence the more likely it is that the consequence was
foreseen and … if that consequence was foreseen the greater the probability is that that
consequence was also intended.”

The test was further refined in R v Nedrick [1986] 1 WLR 1025. When foresight of
consequences is being considered to determine intention, the probability of that consequence
resulting must be “virtually certain” before it can amount to intention:

“… if the jury are satisfied that at the material time the defendant recognised that death or
serious harm would be virtually certain … to result from his voluntary act, then that is the
fact from which they may find it easy to infer that he intended to kill or do serious bodily
harm …”

It was felt that asking a jury to “infer” something was a very difficult thing to do and contrary
to the role of a jury. Although the Nedrick direction did not appear to result in any
difficulties, the HL in R v Woollin [1998] Crim LR 890 HL ruled that instead of “infer” a jury
could “find” that the accused intended to kill or do serious bodily harm.

From the principles in Moloney, Hancock and Shankland, Nedrick and Woollin we can say
that in murder it is a matter for the jury to decide whether the accused acted with the intent
either to kill or to cause grievous bodily harm. Foresight of the consequences of an act is
simply evidence of the existence of intent: it is not the same as intention. The likelihood of
the result is an important matter for the jury to consider in deciding whether the consequences
were intended.

In R v Matthews, R v Alleyn [2003] 2 Cr App R 30 the (Eng) CA considered the implications

of a virtual certainty direction on the issue of intent. The deceased had been thrown from a
bridge into a fast flowing river. It was held that whilst acting deliberately with the
appreciation of the virtual certainty of death did not necessarily amount to an intention to kill,
it was evidence from which an intention to kill could be inferred.
We can say that:

where the consequence which has happened was desired that amounts to an intention
to bring that consequence about;
where the consequence was seen as virtually certain, intention may be found;
where the consequence is foreseen as probable or possible there may be subjective
recklessness.

The cases indicate that a consequence is intended when it is the accused's purpose to bring
about the consequence that has resulted.

An inference that a consequence is intended, though it is not desired, may be drawn where the
consequence that has resulted was a virtually certain result of the act (objective approach),
and the accused knew that it is a virtually certain consequence but nonetheless went ahead
with the act.

The result of the decisions in these cases is that there are two types of intent:

1) Direct intent, where the defendant acts with the purpose of bringing about or causing
a consequence and,
2) Indirect (or oblique) intent, where the defendant acts with foresight that his conduct is
virtually certain to cause a consequence.

 4. Recklessness

Recklessness has become increasingly important as an alternative mental state to intention.

Recklessness is basically concerned with “unjustifiable risk-taking”. A person who does not
intend to cause a harmful result may take an unjustifiable risk of causing it, if he does so, he
may be reckless.

Recklessness covers three main situations in which a person may be said to have caused the
harm occurring.

1) Where D knew of the risk and went on to take it (R v Cunningham [1957] 2 QB

396 – subjective recklessness)
 2) Where D may not have considered whether there was a risk or not (MPC v
Caldwell [1982] AC 341 - objective recklessness)
3) Where D may have considered whether there was a risk and decided that there was
none. (not now reckless).

The traditional common law position is that D can only be held responsible for the resulting
harm where he consciously took the risk involved i.e. where D knew there was a risk, is
willing to take that risk and went ahead and took it deliberately. This is subjective
recklessness as in Cunningham.

The decision in Caldwell redefined and widened recklessness so that D could now be liable
for the harmful results of his actions where he gave no thought to the risk involved where that
risk would have been obvious to a reasonable man. The risk must have been obvious to the
reasonable man, in the sense that any reasonable man would have realised there was a risk
that the consequence which occurred would have occurred if he had thought about it.

This is deemed objective recklessness. See also R v Lawrence [1982] AC 510.

Caldwell recklessness operated harshly, see e.g. Elliot v C (A Minor) [1983] 2 All ER 1005
and was the subject of considerable criticism by judges and by textbook writers as being
inconsistent with the basic concept of criminal liability that the mind must go with the act.

4. The impact of R v G and R [2003] UKHL 50

In this case the House of Lords carried out an extensive review of the law of recklessness.

Two defendants, aged 11 and 12, were convicted of criminal damage. They had set fire to
some newspapers in the back yard of a store. Some of the papers were thrown under a plastic
bin. The boys then left the yard. The papers set fire to the bin. The fire spread to the wall of
the store. Eventually the roof of the store and some adjoining buildings caught fire.
Considerable damage was caused. Neither of the boys intended to cause the damage that had
resulted. The case was brought on the basis they had been reckless. Neither of them
appreciated there was any risk of the fire spreading in the way it had. The trial judge ruled
that he was bound to direct the jury in accordance with Caldwell. Both boys were convicted
of arson (criminal damage by fire).
On appeal the House of Lords held that recklessness should be given the meaning set out in
Cunningham (above) and that Caldwell (above) was wrong. The test of recklessness was put
back to the subjective recklessness test as set out in Cunningham.

5. Recklessness in Hong Kong

As the decision of the House of Lords in R v G and R was not binding on HK’s courts.
Caldwell continued to be followed by HK’s courts, see e.g. R v Chau Ming Cheong [1983]
HKC 68 and R v Dung Shue Wah [1983] 2 HKC 30 and was therefore part of HK law until
the Court of Final Appeal considered recklessness in Sin Kam Wah & Another v HKSAR
[2005] HKCFA 27, FACC No. 14 of 2004.

It concluded (per Sir Anthony Mason NPJ paragraphs 41 to 44) that the criticisms of
Caldwell recklessness in R v G and R were soundly based and that R v G and R should be
applied to HK. Juries should be instructed that:

“--- a person acted recklessly in respect of a circumstance if he was aware of a risk

which did or would exist, or in respect of a result if he was aware of a risk that it
would occur, and it was, in the circumstances known to him, unreasonable to take the
risk. Conversely a defendant could not be regarded as culpable so as to be convicted
---- if due to his age or personal characteristics, he genuinely did not appreciate or
foresee the risks involved in his actions.”

See also the discussion about recklessness in HKSAR v Tang Yuk Wah [2005] HKCA 261

6. Negligence

This connotes the failure of the accused to foresee a consequence which a reasonable man
would have foreseen and avoided. An objective criterion such as this does not require
foresight on the part of the accused. Consequently, it is not specifically a state of mind at all.

In Kong Cheuk-kwan v R [1986] HKLR 648 the Privy Council equated gross negligence and
recklessness. Therefore there is some doubt now as to whether “negligence” exists as a form
of mens rea at all. However, negligence clearly still has a part to play in certain offences
under the Road Traffic Ordinance e.g. careless driving.
In R v Adomako [1995] 1 AC 171, the HL appears to have established (or re-established) the
offence of grossly negligent manslaughter. The actus reus is an omission based on a breach
of duty of care which causes death in circumstances where the accused has been grossly
negligent (or criminally negligent) this being, for practical purposes, the mens rea. We will
look at this concept in more detail under involuntary manslaughter.

7 Conclusion

Whether an offence can be committed recklessly depends upon the definition of the offence.

Where an offence requires a specific intent e.g. an intent to kill in murder there is no room for
recklessness.

Where an offence can be committed recklessly we are talking about Cunningham (subjective)
recklessness.

8. Introduction of Coincidence of Actus Reus and Mens Rea

We have already looked at the actus reus and the mens rea: the factual element and the
mental element.

We have looked at how these two elements must normally come together for criminal
liability. We ignore for the moment strict or absolute liability situations.

We will look now at some of the ways in which there can be a coincidence (or a coming
together) of actus reus and mens rea

We must always look at the definition of the offence to see what actus reus and what mens
rea is required otherwise we will not be able to know whether there is a coincidence.

One of the principles of the common law is that there must be both the factual element of the
crime and the necessary mens rea: see e.g. the discussion in B v. Director of Public
Prosecutions [2000] UKHL 13; [2000] 2 AC 428; [2000] 2 WLR 452; [2000] 1 All ER 833;
[2000] Crim LR 403 (23rd February, 2000) and in R v K [2001] UKHL 41 (25th July, 2001)
both of which are House of Lords cases.

For a Hong Kong case discussing the need for both actus reus and mens rea see HKSAR v So
Wai Lun (HCMA 39/2004) [2005] 1 HKLRD 443.
9. The coming together of actus reus and mens rea

D must be proved to have possessed the necessary mens rea at the time of the commission of
the actus reus of the offence i.e. there must be contemporaneity or coincidence of actus reus
and mens rea.

That is an easy thing to say but what about continuing acts or course of conduct situations or
where you intend to achieve a result towards a particular person, the intended result is
achieved but against another person or where the act was originally accidental?

a) Progressive (or continuing) events

Where one or other of the elements occurs before or after the other there may still be liability
if one of the following applies:-

(i) Continuing act. Where act is a continuing act it is sufficient that D has mens rea
during its continuance. See Fagan v Metropolitan Police Commissioner [1969] 1 QB
439.

The principle is that where act is a continuing act it is sufficient that D has mens rea at some
point during its continuance. D’s act becomes criminal when D forms the necessary criminal
intent.

In Fagan the original accidental contact (which might have been actionable as a tort) became
criminal when the hostile intent was shown to the police officer by the intentional failure to
move the car from the police man’s foot.

(ii) Series of acts. Where D's acts are seen as one long series of acts then as long
as mens rea is present during the transaction it does not matter that it is not present
when the actus reus actually occurs. For murder see R v Thabo Meli [1954] 1 All ER
373; R v Hui Yiu Fai [1993] HKLY 307; McKinnon [1980] 2 NZLR 31; R v Masilela
1968 (2) SA 558.
Thabo Meli was extended to manslaughter where there was no preconceived plan in R v
Church [1966] 1 QB 59; AG's Reference (No 4 of 1980) [1981] 2 All ER 617; and R v Le
Brun [1991] 4 All ER 673.

The principle is that where D's acts are seen as one long series of acts then as long as mens
rea is present at some point during the transaction it does not matter that it is not present
when the actus reus actually occurs.
10. Transferred malice

This generally operates where the actus reus and mens rea of one crime occurs but the victim
or object is different.

For example: A aims to shoot and kill B but misses and kills C instead, see Latimer (1886)
17 QBD 359 Pembliton (I 874) LR 2 CCR 119; Attorney Generals Ref (No.3 of 1994) [1997]
All ER 936 HL (see also Dobinson, I. “Attorney-General’s Reference (No.3 of 1994) in the
House of Lords: Why Not Transferred Malice? Asia Pacific Law Review 1998 6(2) 117-123)

If the defendant, with the mens rea of a particular crime, does an act, which causes the actus
reus of the same crime, he is guilty, although the result, in some respects, is an unintended
one.

In R v Latimer (1886) 17 QBD 359 D, a soldier during an argument with another man C in a
pub, took off his belt swung it at C, missed and wounded the landlady V.
Held: the intention to strike C was transferred to V under the doctrine of
transferred malice.

Malice will not always be transferred. If the defendant, with the mens rea of a particular
crime, does an act that causes the actus reus of another crime, he will not be liable under the
doctrine of transferred malice.

In R v Pembliton (1874) LR 2 CCR 119, D was ejected from a pub and became involved in a
fight. He threw a stone at the group of men he had been fighting, missed them but broke the
pub window behind them.
Held: His "malice" in intending to strike another person could not be transferred to an
intention to break the window.

Elements of public policy come into transferred malice. So for example a person who puts a
bomb on a plane and kills all the passengers, would not have (and should not have) any
defence by claiming that he only intended to kill one particular person whom he mistakenly
thought was on the plane. Once the criminal intent is present and a consequence of the same
result as that intended occurs, then the concept of transferred malice operates.
For a recent Hong Kong case in which transferred malice was discussed see: HKSAR v. Oh
Eugene Jae-Hoon - [2003] HKCFI 456; HCMA000369/2002, 16 May 2003 (paras 33 and 34
of the judgment) (Judiciary web, HKLII)
LW5606A Criminal Law Lecture No. 3. STRICT LIABILITY, VICARIOUS AND
CORPORATE LIABILITY

(Chapter 5 and pages 395 to 402 Jackson)

1. Introduction

Offences which do not require proof of fault (mens rea) as regards any one element of the
actus reus are known as strict liability crimes.

At common law there were very few such crimes but there are literally thousands under
statute, particularly those which concern public safety.

Whether an offence requires mens rea is a question of interpretation. See R v Prince [1874-
80] All ER Rep 881. But we must now consider Prince in the light of B (a minor) v DPP
[2000] AC 428 and R v K [2002] 1 A.C. 462 both of which are House of Lords cases. They
confirm that the starting point in deciding whether mens rea is required for an offence is the
common law presumption that mens rea is an essential ingredient unless the statute creating
the offence indicates a contrary intention.

For a Hong Kong case discussing the need for both actus reus and mens rea see HKSAR v So
Wai Lun (HCMA 39/2004) [2005] 1 HKLRD 443.

2. Determining whether Mens Rea is excluded

The determination whether an offence is one of strict liability is a question of construing the
particular piece of legislation to discover the legislative intention. Often this will be clear.
The requisite mens rea will clearly be required, for example, when the definition of the
offence employs words which connote some mental attitude on the part of the accused e.g.
'knowingly", "wilfully", "dishonestly".

The courts dislike strict liability situations certainly where the consequences of conviction
will be serious and there is a strong resistance to the exclusion of mens rea as a basis for
criminal liability.

The mere absence of such words does not automatically mean that the crime is one of strict
liability and the process to determine whether mens rea is required should proceed from the
common law presumption that mens rea is required. See Sherras v De Rutzen [1895] 1 QB
918, Sweet v Parsley [1970] AC 132; Gammon (HK) v AG of HK [1984] 3 WLR 437; Lim
Chin-aik v R [1963] AC 160.

The presumption in favour of the requirement of mens rea is difficult to rebut if the offence is
one which is "truly criminal”. See Gammon. In Gammon, (building contractor in breach of
the Buildings Ordinance) the Privy Council laid down the following principles regarding
strict liability offences: [page 185 Jackson]

(1) there is a presumption of law that mens rea is required before a person can be
held guilty of a criminal offence;

(2) the presumption is particularly strong where the offence is “truly criminal” in
character ;

(3) the presumption applies to statutory offences, and can only be displaced only if
this is clearly or by necessary implication the effect of the statute;

(4) the only situation in which the presumption can be displaced is where the
statute is concerned with an issue of social concern, and public safety is such an
issue;

(5) even where a statute is concerned with such an issue, the presumption of mens
rea stands unless it can also be shown that the creation of strict liability will be
effective to promote the objects of the statute by encouraging greater vigilance to
prevent the commission of the prohibited act.

If the offence is only "partially" or "quasi-criminal" then the courts are more readily willing
to hold that the offence is one of strict liability. See Alphacell v Woodward Ltd [1972] AC
824. which concerned the prosecution of a company which had polluted a river. This
judgment also pointed out that activities which can be described as “socially dangerous” may
justify the use of the principle of strict liability.

The penalty on conviction may be taken into account when deciding whether an offence is
one of strict liability; the more severe the punishment the less likely the offence is one of
strict liability.
3. Defences

a) General defences

General defences such as duress and insanity are available to charges of offences of strict
liability.

b) Statutory defences

Occasionally the ordinance creating a strict liability offence may provide for a defence
available in limited circumstances. An example is s 22 Crimes Ordinance (Cap 200). This
states:

1) Any person who is found within Hong Kong on board any vessel equipped for the
purposes of piracy, shall be guilty of an offence and shall be liable on conviction upon
indictment to imprisonment for 3 years.

(2) It shall be a defence to a charge under subsection (1) if the person charged proves-
(a) that he was not on board the vessel willingly; or
(b) that he did not know that the vessel was equipped for the purposes of piracy.

Note that if the defendant wishes to rely on either of the available defences the onus is on him
to prove it (on a balance of probabilities).

c) Other defences

Where a statutory offence is recognised as being one of strict liability and no statutory
defence is provided, it may nonetheless be possible for the defendant to rely on a defence
which reduces the seeming harshness of the effect of strict liability offences. Such a defence
takes the form of placing the burden of proving what amounts to a "no negligence" defence
upon the accused; see e.g. the discussion in AG v Mak Cheun Hing & Others HCMA
000398/1996 where it was held that although s. 6 of the Gambling Ordinance, Cap. 148
created an offence of strict liability it was open to the defendants to rely on a defence of
reasonable mistaken belief. See also HKSAR v Cheung Kwan Kit & Others HCMA
000621/2002.

In R v Wang Shih Hung, R v Fong Chin Yue [1995] 1 HKCLR 193 the Hong Kong Court of
Appeal considered that a defence of “reasonable mistaken belief” ought to be available to a
defendant charged with a strict liability offence. And in HKSAR v Ho Hon Chung Daniel
[2006] 3 HKC 304 the Court of Appeal said:

“It is common ground ... that honest belief for good and sufficient reason would
generally be a common law defence available to the defendant on an offence of strict
liability short of absolute liability”

It may be a defence to certain strict liability offences if the defendant can show that he
exercised due diligence, or acted reasonably, or there was no fault on his part and fault lay
with someone else.

In these situations the prosecution have to prove the actus reus (for example the selling of bad
food). The defendant then has the burden of showing, for example that the food came from a
reputable supplier and that he had done all that he could reasonably have been expected to do
to ensure that the food was not contaminated when he sold it on to his customers.

The difficulty is these “no fault” or “no negligence” defences do not apply to all strict
liability offences. In HKSAR v Leighton Contractors [2000] 1 HKLRD 787 it was held that
the Wang Shih Hung case (above) was not authority for a proposition that there is a general
defence of “due diligence” or “taking all reasonable steps”.

The recent case of Hin Yin Lee and another v HKSAR (FACC 7 of 2009) [2010] 2 HKLRD
826, (2010) 13 HKCFAR 142 has gone some way to clarifying the position. In his judgment
at para. 198, Riberio PJ said this:

“The proper starting-point for ascertaining the mental requirements of any statutory
offence ….. is to presume that the prosecution must prove mens rea in respect thereof. That
presumption may be displaced expressly or by necessary implication. If it is not displaced,
the mens rea requirement persists.

If the presumption is displaced, three possible alternatives arise under Hong Kong law,
namely whether the legislative intent is:
a) to allow a defence if the defendant can prove on the balance of probabilities that the
prohibited act was done in the honest and reasonable belief that the circumstances were such
that, if true, he would not be guilty of the offence; or
b) to confine the defences open to the accused in relation to his mental state to the
statutory defences expressly provided for in relation to the offence charged; or,
c) to make the offence one of absolute liability so that the prosecution succeeds if the
accused is proved to have performed or brought about the actus reus, regardless of his state
of mind.

Where there is a defence, D has to prove it on a balance of probabilities, not with certainty.

Where there is no available defence (other than the general defences of insanity, duress etc.
mentioned above) the offence is said to be one of absolute liability. An example would be
remaining in Hong Kong illegally.

c) Sexual offences

The House of Lords in B (a minor) v DPP [2000] AC 428 had to consider the case of R v
Prince (1875) LR 2 CCR 154, in which the Court held in relation to a charge of abduction of
an unmarried girl under the age of 16 that the defendant’s belief that the girl was over 16 did
not provide a defence.  The Court stated its view that the statutory intention could not have
been to make these types of crime subject to the defendant’s knowledge of the age of the
victim : - at 171 per Blackburn J (who delivered the judgment representing the views of ten
of the majority).  The House of Lords effectively held that R v Prince was no longer good law
insofar as it was authority for the proposition that for age-related sexual offences, the
defendant’s knowledge or belief was irrelevant : - see 466C-F and 475E-476G.

In B (A Minor) v DPP, the House of Lords was concerned with the mental element in the
offence contained in section 1(1) of the Indecency with Children Act 1960 of inciting a child
under the age of 14 to commit an act of gross indecency.  The question for the House was
whether the mens rea presumption applied to that offence.

It was unanimously held by the House of Lords that the presumption did apply and therefore
the prosecution had to prove beyond a reasonable doubt that the defendant knew the victim to
be under the age of 14 : - at 466B (per Lord Nicholls of Birkenhead), 478B (per Lord Steyn)
and 482C-D (per Lord Hutton).

In Hong Kong the Court of Appeal considered the case of B (A Minor) in HKSAR v So Wai
Lun [2005]1 HKLRD 443 (HCMA 39/2004) and said:

  The particular provision with which the House of Lords dealt in B (A Minor) v DPP is
not relevant to Hong Kong, but a number of statements of general principle were made with
which we would with respect concur.  We now set these out and add some observations of
our own : -

(1)     The mens rea presumption was expressly reaffirmed by the House of Lords. 
Where a statutory provision was silent as to the mental element, mens rea had to be proved
by the prosecution.  The fact that one of the ingredients of the offence was an age-related one
made no difference.  As Lord Nicholls of Birkenhead put it at 463G : -

“I add one further general observation.  In principle, an age-related ingredient of a

statutory offence stands on no different footing from any other ingredient.  If a man
genuinely believes that the girl with whom he is committing a grossly indecent act is over 14,
he is not intending to commit such an act with a girl under 14.  Whether such an intention is
an essential ingredient of the offence depends upon a proper construction of section 1 of the
Act of 1960.  I turn next to that question.”

(2)     The presumption can only be negatived either expressly or by necessary

implication : - at 463H-464A, 470G-H.  Lord Nicholls of Birkenhead provided useful
guidance as to the meaning of “necessary implication” at 464A-B : -

“ ‘Necessary implication’ connotes an implication which is compellingly clear.  Such an

implication may be found in the language used, the nature of the offence, the mischief sought
to be prevented and any other circumstances which may assist in determining what intention
is properly to be attributed to Parliament when creating the offence.”

(3)     The existence of the presumption is, however, reinforced when the relevant
statutory offence is a serious one  : - at 464B-C.  The more serious the offence, the more
serious is the punishment and the stigma that attaches to it.  Where offences are “truly
criminal” in character, the presumption is particularly strong : - see the speech of Lord
Scarman in Gammon (Hong Kong) Ltd, Yee Chin Teo, Chan Shing Mak v Attorney-General
of Hong Kong [1985] AC 1, at 14B-C.  As will presently be seen, this factor has caused us
some anxiety in the present case.

(4)     In construing the relevant legislation, the Court can have regard to the legislative
history surrounding the statutory provision in question.  Both Lord Nicholls of Birkenhead
and Lord Steyn made extensive references to the history of the legislation before concluding
that the Sexual Offences Act 1956 (which the Crown in that case had sought to use as a
parallel) contained a number of disparate offences that had no coherent pattern :  - at 465H,
468E and 473G.
 (5)     Not too much assistance can be gained from looking solely at the objective of the
statute being one for the protection of children below a certain age.  While the policy behind
the statute may be tolerably clear, this however gave no indication as to whether the offence
should be regarded as one of strict liability or absolute liability : - at 464E-F and 475B-E. 
Reference was made to the opinion of Lord Evershed in Lim Chin Aik v The Queen [1963]
AC 160, at 174 where it was emphasized that one of the factors going to the existence of
strict liability offences was whether it would somehow enforce compliance with industrial or
public health regulations.  These areas provide in our view two of the more common ones
where offences may attract strict liability being offences which are not really criminal in
nature :  - see here also Gammon (Hong Kong) Ltd at 13E-14D.

(6)     In arriving at its conclusions, the House of Lords had to consider the case of R v
Prince (1875) LR 2 CCR 154, in which the Court for Crown Cases Reserved, by a majority of
15 to 1, had held in relation to a charge of abduction of an unmarried girl under the age of
16 that the defendant’s belief that the girl was over 16 did not provide a defence.  In so
holding, the Court stated its view that the statutory intention could not have been to make
these types of crime subject to the defendant’s knowledge of the age of the victim : - at 171
per Blackburn J (who delivered the judgment representing the views of ten of the majority). 
The House of Lords effectively held that R v Prince was no longer good law insofar as it was
authority for the proposition that for age-related sexual offences, the defendant’s knowledge
or belief was irrelevant : - see 466C-F and 475E-476G.

Therefore, whether an offence (whether sexual or not) is strict or absolute is determined by

the subjective exercise of statutory construction. In the case of So Wai Lun (a case of sexual
intercourse with a girl under 16), the court held that such an offence was one of absolute
liability.

See also the case of R v G [2009] 1 AC 92 (rape of a child under 13) where it was said that:

‘there is no requirement that the accused must have known that the other person was
under 13. The policy of the legislation is to protect children. If you have sex with someone
who is on any view a child or young person, you take your chance on exactly how old they
[sic]are. To that extent the offence is one of strict liability and it is no defence that the
accused believed the other person to be 13 or over.’

4. Justifications for Strict Liability

Deterrence: Is it essentially unjust to convict a person whose conduct transgresses the actus
reus notwithstanding that he exhibited the standard of care expected from a reasonable man?
Social concern (e.g. public safety, the environment, the protection of young girls): To
encourage people to take special care.

Ease of proof.

5. Absolute Liability

The Legislature can create offences of absolute liability where there are no defences and
simply doing the prohibited act is enough for criminal liability. An example of this is seen in
HKSAR v So Wai Lun, above, where on a charge of unlawful sexual intercourse with a girl
under 16 years of age contrary to s. 124 of the Crimes Ordinance, Cap. 200 an honest belief
that the girl was over 16 was held not to be a defence.

6. Conclusion 

The authorities in Hong Kong therefore establish:

(1)    A strict liability (as distinct from an absolute liability) offence is one where the
prosecution does not have to prove mens rea but the legislation creating the offence may
allow a statutory defence or not exclude an honest and reasonable belief defence (see Hin Lin
Yee (above). In Mak Chuen Hing Litton VP said this when dealing with strict liability
offences : -

“As Bokhary JA said in Fong Chin-yue at p200, the common law rules of construction
themselves have a high human rights content.  No court would ascribe to the legislature the
intention of creating a crime of absolute liability, with no possibility of a defence of honest
belief or reasonable excuse, unless the context admits of no other view: particularly where
the commission of the offence may result in imprisonment.”

(2)    Whether or not an offence is to be regarded as one involving strict liability or absolute
liability depends on the relevant context of the legislation creating the offence, as the passage
just quoted states.

To summarise then; an offence of strict liability is one where the prosecution do not have to
prove any mental element (mens rea) on the part of the defendant but the defendant may be
able to rely on a statutory or “no fault” defence. An offence of absolute liability is one where
the prosecution do not have to prove mens rea, no statutory defence is available and the
defendant cannot raise a “no fault” defence.
6. Vicarious Liability

Vicarious Liability means the liability of one person for the acts of another. As this is
contrary to the common law view that a person is criminally responsible only for his own
wrong, vicarious liability at common law was confined to public nuisance and criminal libel.

Most offences of vicarious liability are creatures of statute. This is either because an offence
of strict liability is interpreted as involving vicarious liability or a servant's act has been held
to be his master's act in law. See Kwok Hung-fai [1982] HKLR 453; ICR Haulage Ltd [1944]
KB 551. Therefore, there are two ways to establish vicarious liability:

1) Express vicarious liability – Vicarious liability may be expressly provided for in the
legislation:

See for example s. 8 Miscellaneous Licences Ordinance (Cap 114).

Whenever any person to whom any licence or permit or authority has been issued or granted
under this Ordinance would be liable under the provisions of this Ordinance or of any
regulations made thereunder to any punishment, penalty or forfeiture for any act, omission,
neglect or default, he shall be liable to the same punishment, penalty or forfeiture for every
similar act, omission, neglect or default of any agent or servant employed by him in the
course of his business, and every such agent or servant shall also be liable to every
punishment, penalty or forfeiture prescribed for such acts, omissions, neglects or defaults
contrary to the provisions of this Ordinance as fully and effectually as if he had been the
person to whom the licence or permit or authority had been issued or granted.

2) Implied Vicarious Liability.

There are two ways of implying vicarious liability.

(A) The Attributed Act

The criminal act of the employee or agent may be treated in law as the act of his or her
employer or principal if 1) the offence committed is a strict liability offence, and 2) the
activity which forms the basis of the offence is referable to the employer or principal. E.g.
Conduct such as selling can be referred back to the employer/principal: London Borough of
Harrow v Shah and Shah [2000] Crim LR 692: VL of Employer/Principal for the unlawful
sale of lottery tickets to underage buyers by employees/agents.
In the main licensing statutes provide that the only person who can be liable is the licensee. In
order to prevent the avoidance of liability under such provisions by the utilisation of someone
other than the employee, the courts developed the doctrine of delegation. Ajax Surveyors
High Court Case Nos 119 and 165 of 1994; AG’s Ref. No.2 of 1999 [2000] Crim LR 475.

For two other Hong Kong cases see HKSAR v Chiu Teresita D & Others HCMA 635/2000
and HKSAR v Wong Yiu Wah & Others HCMA 508/2001 (Judiciary web).

(B) The Delegation Principle

Where a statute places a duty upon one person (for example as a licensee) and he delegates
the performance of the activity to a second person, the delegator may be liable for the
conduct of the delegates in performing that activity. According to Vane v Yiannopoullos
[1965] AC 486 delegation occurs when the licensee has handed over to another the
management of his premises or the whole of his authority. In other words the delegation must
be complete and not merely partial. D operated a licensed restaurant, in which alcohol could
be served but only to customers having a meal. D advised his staff of this restriction and them
instructions to comply. On one occasion, while D was on one floor of the premises, a waitress
on another floor served alcohol in breach of the restriction. HL held: D had only partially
delegated performance of his duties, and hence not liable for breach of the licence conditions.

Once delegation has been established the actus reus and mens rea (if required) of the delegate
is imputed to the licensee as if it were his own in order to fix the latter with liability and to
give effect to the statutory provision.

Although there cannot be vicarious liability for the common law concept of aiding and
abetting since, except in the two situations mentioned above, the common law required the
accused to have his own mens rea, there may be vicarious liability for certain statutory
offences not withstanding that they require mens rea e.g. licensing offences.

8. Corporate Liability

How can a corporation be made criminally liable?

A corporation is an artificial legal person with an identity separate from the persons who
comprise it. Consequently a corporation may be criminally liable in the same way as a natural
person subject to certain limitations. Thus there is not liability for crimes of such a personal
nature such as theft. The exception is manslaughter and this area of corporate liability has
taken on a new perspective since the decision in Adomako on gross negligent manslaughter.
See R v P and O European Ferries (Dover) Ltd (1990) 93 Cr App R 72.

A corporation may be liable for a criminal offence by virtue of its status as an “owner” or
“occupier” for example.

In the case of an offence of strict liability, a corporation can be vicariously liable for the
criminal conduct of its staff in the same way as an individual.

In addition there is a principle of corporate liability whereby the corporation is liable as if the
crime were its own act. For this principle to apply the crime must have been committed by a
sufficiently superior corporate employee or director, the theory being that he is then acting
not only as a private individual but also as the company (the so-called "alter-ego theory").
See Tesco Supermarkets v Nattrass [1972] AC 153. For a discussion of that case see HKSAR
v Bob Lit [1992] HKCFI 323, HCMA000314/1992. In other words, the company can be held
liable by acts done by the board of directors, the managing director, and perhaps other
superior officers who are in actual control of the operation of the company and who are not
responsible to another in the sense that they are not under another’s orders.

As the theory holds that the company has its own personal mens rea via the superior officer, a
company may be corporately liable for common law offences requiring mens rea.

Generally for corporate liability to apply financial penalties must be possible. There are some
crimes which a corporation cannot commit e.g. murder (because of the punishment), and rape
(the nature of the offence).

Corporate liability is largely based on public policy considerations

Note that a Director or other officer of a company or corporation may be criminally liable for
the acts of the company. This is recognition that a company or other corporate body acts
thoughts its officers. See e.g. s. 20 of the Trade Descriptions Ordinance (Cap 362) which
provides:

Where a body corporate is convicted of an offence under this Ordinance, every person
who, at the time of the commission of the offence, was a director, manager, secretary or
other similar officer of the body corporate, or any person who was purporting to act in
any such capacity, shall be deemed to be guilty of that offence unless he proves that the
offence was committed without his knowledge, or that he exercised all due diligence to
prevent the commission of the offence.
LW5606A Criminal Law Lecture No. 4. PARTICIPATION - PRINCIPAL and
SECONDARY PARTIES

(Chapter 8 Jackson)

1 Introduction

In this lecture we will look at modes of participation in crimes.

Parties to a crime may now be involved as:

a) principal offenders, i.e., the actual perpetrator or person who commits the
crime through an agent;

b) secondary parties, i.e. those who aid, abet, counsel or procure the commission
of the actus reus by the principal.

The difference between these modes of participation is now of little consequence. By virtue
of s.89 Criminal Procedure Ordinance (Cap 221) secondary parties are liable to be tried,
indicted and punished as a principal offender. This section states:

Any person who aids, abets, counsels or procures the commission by another person of any
offence shall be guilty of the like offence.

It is usual therefore for secondary parties to be charged as principals. But the particulars of
the offence charged should reflect the realty of the situation, so that if the defendant is in fact
a secondary party, the particulars should make that clear.

2. The Principal Offender

(a) The principal (main perpetrator) may either commit the actus reus himself,
or bring it about by the act of someone who is not criminally liable because he
has a defence (i.e. an innocent agent) e.g.
(i) no mens rea
(ii) infancy
(iii) insanity
See R v Bourne (1952) 36 Cr App R 125 (in which duress was treated as negating mens rea)
and R v Wheelhouse [1994] Crim LR 756

(b) The doctrine of innocent agency is probably inapplicable to crimes involving

an element personal to the accused e.g. rape but see R v Cogan & Leak [1976]
Q.B. 217 referred to at p 356 in Jackson. Here the English CA suggested that
a person who takes steps causing another to commit the actus reus of an
offence may be convicted for procuring that offence even though the apparent
Principal (the one who actually physically raped V) may be acquitted for lack
of mens rea for the offence. Here Cogan was acquitted of raping Leaks wife
because Leak had misled Cogan into believing, mistakenly, that Leak’s wife
was consenting. Cogan therefore, due to mistaken belief, lacked the necessary
mens rea for rape. The Court said:

Her [rape] had come about because Leak wanted it to happen and had taken
action to see that it did by persuading Cogan to use his body as the instrument
for the necessary physical act. In the language of the law the act of sexual
intercourse without the wife’s consent was the actus reus; it had been procured
by Leak who had the appropriate mens rea, namely his intention that Cogan
should have sexual intercourse with her without her consent.

(c) There may be more than one principal and where two or more people together
commit an offence they are usually termed "joint principals". Joint principals
would be liable where two or more persons do exactly the same act or where
two or more persons each do part of the actus reus.

3. Secondary Parties

As we have seen, S. 89 of the Criminal Procedure Ordinance (Cap 221) provides: -

"Any person who aids abets counsels or procures the commission by another of any
offence shall be guilty of the like offence”.

Meanings:

Aiding: helping, supporting or assisting to P, Principal, but presence at the scene is not
necessary. Therefore if D gives P a weapon or tool prior to a robbery or burglary, he has
assisted/helped/supported regardless of whether D is physically present at the scene/incident.
Abetting/Counselling: essentially the same: encourage, incite, instigate, order, advise,
persuade – requires a meeting of the minds/consensus (each knows what is passing through
the mind of the other…some sort of mental link: A-G’s Reference (No. 1 of 1975).
Difference: Abetting requires presence whilst counseling is done without presence.
Therefore, D ‘abets’ when he shouts out ‘kill him’ at the crime scene to P, or tells P to drive
faster in excess of the speed limit. D ‘counsels’ by asking P to kill V after D has left town.

Procuring: A-G’s Reference (No 1 of 1975): to produce by endeavour, by taking steps which
cause another to commit it regardless of consensus or meeting of minds: You procure a thing
by setting out to see that it happens and taking the appropriate steps to produce that
happening… . Causation …is important. You cannot procure an offence unless there is a
causal link between what you do and the commission of the offence… . In A-G’s Reference
(No 1 of 1975) D had laced a friend’s drink with double measures of alcohol with the result
that the friend (Principal) was over the drink/drive limit. The CA held: It has been procured
because, unknown to the driver and without his collaboration, he has been put in a position
in which in fact he has committed an offence which he never would have committed
otherwise. We think that…the trial judge should have directed the jury that an offence is
committed if it is shown beyond reasonable doubt that the accused knew that his friend was
going to drive, and also knew that the ordinary and natural result of the additional alcohol
added to the friend’s drink would be to bring him above the recognised limit…

(a) Abetting requires proof of presence at the commission of the principal offence plus
active encouragement. Mere presence is insufficient. The "helping" or
"encouragement" must be given prior to or during the commission of the offence.

(i) Generally the encouragement must be active but exceptionally passive

encouragement may suffice. See Tuck v Robson [1970] 1 All ER 1171;
National Coal Board v Gamble [1958] 1 QB 11 [1958] 3 All ER 203. In Tuck
v Robson, Tuck was the licensee of a bar. T was convicted of aiding and
abetting the unlawful consumption of alcohol on the basis that he had the
power to require customers to leave the bar and failed to do so resulting
in the continued sale of alcohol. Therefore, by his inaction, he had lent
“passive” assistance to the commission of the offence. In a HK case, Chan
Wing Hang [1996] 3 HKC 225, the defendant, the manager of a bar, being
in a position to control staff had acquiesced in the prohibited sale by them
of alcohol, – once again a form of encouragement.
 (ii) Presence at the scene of the crime is not generally enough to establish
abetting. The presence must not be accidental it must be intentional. See R v
Allan [1965] 1 QB 130; R v Clarkson [1971] 3 All ER 344; Kwan Kwok-
hing v R [1977] HKLR 159 and Jackson at p. 345. In R v Clarkson, C and 2
others were convicted of aiding and abetting rape. All 3 while drunk entered a
room in an army barracks where a girl was being raped by several other
soldiers. After having entered they observed the incident for some time but
there was no evidence that C or the others did or said anything to actively
encourage or physically participated in the rape. On appeal, C and others
argued mere presence was insufficient for aiding and abetting. Held:
convictions quashed – where non-accidental presence but no further acts or
words of assistance or encouragement was proved - no liability as no ‘wilful
encouragement. This case was applied in HK in Kwan Kwok-hing: K and P
were walking down the street when according to K, P spontaneously robbed a
female by seizing her neck and stealing here hand-bag. K’s conviction for
aiding and abetting was quashed as there was no evidence that K played any
active role in the robbery; in fact, according to the victim, K had persuaded P
to return the bag to V.

(iii) There is no need to prove that the aiding, abetting or counselling ‘caused’ the
offence committed by D1. Causation must be proven if it is alleged that D2
procured the offence. See R v Calhaem [1985] QB 808; [1985] 2 All ER 200.
Procurement as part of the actus reus requires the secondary party: ‘to produce by
endeavour’ or take steps which cause another to commit the offence. With
aiding, abetting or counselling there is no implication in those words that there
should be causal connection between the words and the actual offence. In
Calhaem: C was convicted of murder. She hired Z to murder R (contract
killing). Z went to R’s home intending only to pretend to carry out his
‘contract’ but when R screamed, he went ‘berserk’ and actually killed R. Z
pleaded guilty to murder. C was charged with counselling and procuring R’s
murder. At trial C argued that prosecution had failed to prove causation
between her communication with Z and R’s death, as the chain of causation
was broken by Z going ‘berserk’ (Z was now outside the scope of the
communication). Trial Court held that causation was relevant to procurement
but not necessary for counselling. The Court of Appeal agreed and said:

We must therefore approach the question raised on the basis that we should
give to the word “counseling” its ordinary meaning, which is, as the judge
 said, “advise”, “solicit”, or something of that sort. There is no implication in
the word [counsel] itself, that there should be any causal connection between
the counseling and the offence… Therefore, once you counsel and death takes
place either by insanity or accident i.e. whether inside or outside the scope of
your communication– you are still liable for having counseled.”

Examples of the sort of conduct needed for aiding and abetting may be seen in cases of
helping illegal immigrants to come into Hong Kong or helping them once they are here e.g.
by providing employment, financial support or documentation. See e.g. HKSAR v Cheng So
Kee HCMA 212/2003 and HKSAR v Law Kit Ching HCMA 313/2003.

(b) The Mens Rea of Secondary Participation

Whatever the principal offence the secondary party (D2) must be shown to have had actual
knowledge of, or wilful blindness towards, the circumstances which constitute the offence.
This does not mean the same as having the same mental fault as D1 (the Principal) for the
offence.

(i) D2 must know of D1’s intention and the facts which make D1's
purpose criminal. See Johnson v Youden [1950] 1 KB 544: D2 must at
least know the essential matters which constitute that offence. He need
not actually know that an offence has been committed but he must
know that P intends to commit that crime

(ii) D2 must have intended to aid, abet procure or counsel D1 in the

commission of the offence.

Recklessness will not be sufficient as the mens rea of D2.

(c) Counselling connotes that the accused advised or solicited (or again encouraged) the
principal to commit the principal offence.

(d) Procuring means "to produce by endeavour". There must be causal link between the
secondary party's conduct and the principal offence. Procuring must occur before the
commission of the offence. See AG's Ref (No 1 of 1975) [1975] QB 773.
4. Knowledge of the Type of Crime

(a) It is sufficient if the offence committed is of the "type" D2 contemplated.

See R v Bainbridge [1960] 1 QB 129 [1959] 3 All ER 200; DPP for Northern Ireland v
Maxwell [1978] 3 All ER 1140 Extension of mens rea: Questions of broad awareness: In
Bainbridge, B supplied oxygen-cutting equipment to P, who subsequently used it to rob a
bank, leaving the equipment behind. B was convicted as accessory before the fact on the
basis that B admitted suspicion that P wanted the equipment for something illegal, probably
for breaking up stolen goods, even though B said he ‘had no knowledge that the equipment
was going to be used for any such purpose as that for which it was used’. Liability/mens rea
based on a crime the type of which that D knew was intended even though details were
unknown. In DPP for Northern Ireland, the House of Lords extended the mens rea of D for
offences committed by P within the range of offences contemplated by D (though not
known). Here Maxwell, being a member of a terrorist group in North Ireland guided other
members to a bar, guessed ‘something was up’ (some sort of terrorist activity was going to
take place) but after guiding them drove away. Other members unsuccessfully tried to bomb
the bar. M was convicted as a secondary party but argued his conviction was incorrect as he
did not know exactly what was to happen. The court stated: [A Secondary party/accessory]
may have in contemplation only one offence, or several; and the several which he
contemplates he may see as alternative. An accessory who leaves it to his principal to
choose, is liable, provided always the choice is made from the range of offences from which
the accessory contemplates the choice will be made.

(b) The doctrine of transferred malice can apply to secondary parties.

4 (bis)

But see R v Jogee [2016] UKSC 8 where the Supreme Court reversed itself ruling that
foresight is simply evidence of intent to assist or encourage, not dispositive. The
prosecution must prove the defendant had the intent to assist or encourage instead of
actual knowledge of, or wilful blindness towards, the circumstances which constitute
the offense.

This development in UK law has not made its way into Hong Kong law yet but will be an
issue in months and years to come.
5. Joint Enterprises or The Common Design

(a) If two people embark on a joint enterprise, each is liable for acts done in pursuance of
the agreement within the scope of the joint enterprise. See R v Baldessare (1930) 144
LT 185

(b) D2 can be liable as a joint principal or a secondary party depending on the level of
participation.

(c) Generally acts are considered part of a joint enterprise when they are contemplated or
foreseen by D2 as a possible result of carrying out the joint enterprise. But if D1 goes
beyond the scope of the concerted action then D2 would not be liable. See Mok Tsan-
ping [2001] 2 HKLRD 325; Powell and English [1998] Crim LR 48 HL and also see
Clarkson ‘Complicity, Powell and Manslaughter [1998] Crim LR 557. Essentially
what is required are two elements: ‘participation’ and ‘contemplation’ without a
departure from the enterprise.

6. A special problem: group attacks

Often a victim will be attacked by more than one person and persons may join and
leave the attack from time to time.

This type of situation was extensively discussed by the Court of Appeal in England in
R v Uddin (1999) 1 Cr App R 319 and in R v McCarthy [2003] EWCA Crim 484.
These principles emerged:

1) Where two or more parties embark on a joint enterprise to commit a crime and one
foresees that in the course of the enterprise another party may carry out, with the
requisite mens rea, an act constituting another crime, the former is liable for that crime
if committed by the latter in the course of the enterprise.

(2) Where the principal kills with a deadly weapon, which the secondary party did not
know that he had and of which he therefore did not foresee use by the principal, the
secondary party is not guilty of murder.

(3) If the weapon used by the primary party is different to but as dangerous as the
weapon which the secondary party contemplated he might use, the secondary party
should not escape liability for murder because of the difference in the weapon, for
example if he foresaw that the primary party might use a gun to kill and the latter used
a knife to kill or vice versa.

(4) The secondary party is subject to criminal liability if he contemplated the act
causing the death as a possible incident of the joint venture, unless the risk was so
remote that the jury takes the view that the secondary party genuinely dismissed it as
altogether negligible.

(5) If, in the course of the concerted attack, a weapon is produced by one of the
participants, and the others, knowing that he has it in circumstances where he may use
it in the course of the attack, participate or continue to participate in the attack, they
will be guilty of murder if the weapon is used to inflict a fatal wound.

For a discussion of participation in crime in Hong Kong see HKSAR v Sze Kwan Lung &
Others [2003] HKCA 349 (No 92 of 2002) [2004] HKCFA 61; FACC000005/2004, (The
Immigration Tower fire case) (Judiciary web)

See also on this point: R v Errol Carlton O’Flaherty and Others [2004] EWCA Crim 526.

7. Conviction of Secondary Party and Acquittal of Principal Offender

(a) It is possible for D1 to be acquitted, whilst the secondary party remains liable for the
offence? See Cogan and Leak (discussed earlier) Luk Siu-keung, DPP v K and B.
But see also e.g. the discussion about participation in crime in HKSAR v Sze Kwan
Lung & Others. (above).

(b) Can D2 be convicted of an offence more serious than that of which D1 has been
convicted? See Richards, Howe, Luk Siu-keung.

One of the certified questions before the House of Lords in R v. Howe [1987] 1 AC 417 was:
“Can one who incites or procures by duress another to kill or be a party to a killing be
convicted of murder if that other is acquitted by reason of duress?”  Their Lordships were
unanimous in answering this question in the affirmative.  Lord Mackay said (at p.458 C-D)
that “where a person has been killed and that result is the result intended by another
participant, the mere fact that the actual killer may be convicted only of the reduced charge of
manslaughter for some reason special to himself does not, in my opinion in any way, result in
a compulsory reduction for the other participant”.
In Osland v. R (1998) 197 CLR 316 Mrs Osland and her son were jointly charged with the
murder of her husband who was the son’s step-father.  The prosecution’s case was that they
had entered into a plan to murder the deceased.  It was not in dispute that Mrs Osland had
mixed sedatives into the deceased’s dinner and that the deceased was killed as the result of a
blow struck by the son in Mrs Osland’s presence while the deceased was asleep.  Each
accused relied on self-defence and provocation.  The jury convicted Mrs Osland of murder. 
But they were unable to reach a verdict in respect of the son (who was acquitted when tried
again).  The High Court of Australia (McHugh, Kirby and Callinan JJ, Gaudron and
Gummow JJ dissenting) held that the conviction of Mrs Osland for murder was not
inconsistent with the jury’s failure to reach a verdict in respect of the son.  At p.344 McHugh
J cited the passage from Lord Mackay’s speech in Howe’s case referred to above, and said:

“This statement is conclusive in England, at all events, in showing that it is the acts, and not
the crime, of the actual perpetrator which are attributed to the person acting in concert.  If the
latter person has the relevant mens rea, he or she is guilty of the principal offence because the
actus reus is attributed to him or her by reason of the agreement and presence at the scene.  It
is irrelevant that the actual perpetrator cannot be convicted of that crime because he or she
has a defence such as lack of mens rea, self-defence, provocation, duress or insanity.”

In Hui Chi Ming v. R [1992] 1 AC 34, an appeal from Hong Kong, the Privy Council held
that it was not an abuse of process to prosecute the appellant for murder as a participant in a
joint enterprise even though the actual killer had earlier been convicted of manslaughter
only. 

(c) Where the offence involves a person who is a member of a class of persons protected by
statute that person cannot be a secondary party. Thus a girl under 16 cannot aid and abet a
man to have unlawful sexual intercourse with her. R v Tyrrell [1894] 1 QB 710.

8. Overlap of aid and abetting, counseling and procuring

There is considerable overlap between these offences. An offender who helps in the course of
an offence may be charged that they “did aid and abet, counsel and procure ----- “
For a full discussion of these issues see the judgment of the CA of England and Wales in R v
Bryce [2004] EWCA Crim 1231 (Bailii).

9. Withdrawal
If a secondary party withdraws from a criminal enterprise before its completion, he will
escape liability if he gives timely and unequivocal notice to the other party of his change of
heart where this is practicable and reasonable. See Hui Chi-wai and Others CA No.78 of
1999; Becerra (1975) 62 Cr App Rep 212; Rook [1993] 2 All ER 955.

See also Smith “Withdrawal in Complicity” [2001] Crim LR 769. In Beccerra, V was
stabbed to death during a burglary with a knife provided by B shortly before the incident. It
was held that B’s sudden departure from the scene of the crime with the words: ‘Come on,
let’s go’, was an insufficient communication of withdrawal. In Rook, R was recruited 2
others for a contract killing, then failed to appear on the appointed day; R had not effectively
withdrawn from the enterprise since he never told the other that he was not going ahead with
the crime. ‘Unequivocal communication’ of withdrawal is required.

Withdrawal from a joint enterprise was considered in R v Errol Carlton O’Flaherty and
Others (above). The case involved an altercation between two groups of youths which
resulted in the death of the victim. He was stabbed and also suffered head injuries. Issues
arose whether the event leading to the death was one event or a series of continuing events
and what would amount to a withdrawal from a joint enterprise.

There must be actual withdrawal, repentance is not enough. To disengage from an incident a
person must do enough to show that he or she is withdrawing from the joint enterprise: that is
a question of fact in each case and all the surrounding circumstances must be considered.

It is not necessary for the person withdrawing to take reasonable steps to prevent the crime.

There is a distinction between withdrawal from a pre-planned enterprise and withdrawal from
a spontaneous enterprise. In the former there should be a communication of the withdrawal.
In a pre-planned enterprise there will generally be opportunity to communicate the
withdrawal and the communication becomes evidence of the withdrawal. In a spontaneous
violence situation it may not be practical to communicate withdrawal and factual withdrawal
which shows factual and complete disassociation is enough.

10. Assisting Offenders after the Commission of the Offence

At common law a person who assisted an offender after the offence had been committed was
known as an accessory after the fact. The position is now covered by the Criminal Procedure
Ordinance (Cap 221):
Section 90

(1) If a person has committed an arrestable offence, any other person who, knowing
or believing him to be guilty of the offence or of some other arrestable offence, does,
without lawful authority or reasonable excuse, any act with intent to impede his
apprehension or prosecution shall be guilty of an offence.

(2) If on the trial of an indictment for an arrestable offence the jury are satisfied that
the offence charged (or some other offence of which the accused might on that charge
be found guilty) was committed, but find the accused not guilty of it, they may find
him guilty of any offence under subsection (1) of which they are satisfied that he is
guilty in relation to the offence charged (or that other offence).

(3) A person guilty of an offence under subsection (1) shall be liable-

(a) on conviction on indictment, to imprisonment for 10 years; or
(b) on summary conviction, to a fine of $5000 and to imprisonment for 2 years.
Section 91

1) If a person has committed an arrestable offence, any other person who, knowing or
believing that the offence or some other arrestable offence has been committed, and
that he has information which might be of material assistance in securing the
prosecution or conviction of an offender for it, accepts or agrees to accept for not
disclosing that information any consideration shall be guilty of an offence and shall
be liable on conviction on indictment to imprisonment for 2 years.

[Under s. 3 of the Interpretation and General Clauses Ordinance Cap. 1

"arrestable offence" (可逮捕的罪行) means an offence for which the sentence is fixed by law
or for which a person may under or by virtue of any law be sentenced to imprisonment for a
term exceeding 12 months, and an attempt to commit any such offence]
LW5606A Criminal Law Lecture No. 5. HOMICIDE: Murder

(Chapter 10 of Jackson)

1. Introduction.

Homicide is the unlawful killing of one person by another person.

The term ‘homicide’ covers murder, manslaughter, infanticide, genocide and causing death
by dangerous driving.

Also note abortion and child destruction. These offences are not covered by the expression
“homicide” because of the requirement under that term for the killing of a person in being
(independent life) so separate provision is needed to cover abortion and child destruction.

2. Murder

Murder is a common law offence. There is no definition of murder in any ordinance and we
have to turn to the common law for its definition. The Homicide Ordinance, Cap. 339 refers
to certain killings which are not murder (e.g. where the killer is suffering from diminished
responsibility or has been provoked) but it does not define murder.

Section 2 of the Offences Against the Person Ordinance (OAPO) Cap. 212 tells us that a
person convicted of murder shall be imprisoned for life. The sentence for murder is fixed by
law: that means the judge has no discretion to impose any other sentence.

Where however a person convicted of murder was under 18 years of age at the time of the
offence, the court has discretion whether the person should be sentenced to imprisonment for
life or to imprisonment for a shorter term (s.2 OAPO).

An act which would otherwise be murder may be reduced to manslaughter where there is
provocation, where D acted under diminished responsibility or where D was acting under a
suicide pact (Homicide Ordinance, Cap. 339). These issues will be discussed later.

3. Definition of Murder
The traditional definition of murder is “when a man of sound memory, and of the age of
discretion, unlawfully killeth within any country of the realm any reasonable creature
in rerum natura under the King’s peace, with malice aforethought, either expressed by
the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or
hurt, etc. within a year and a day after the same.”

This definition appears in Sir William Blackstone’s commentaries on the laws of England
first published 1765 – 1769 and is based on an earlier statement by Sir Edward Coke a
renowned judge and politician.

The year and a day rule was abolished by s.33C of the OAPO in 2000 as advances in medical
science had made the year and day rule redundant.

Murder is therefore an unlawful killing of a person in being with intent to kill or the intent to
inflict grievous bodily harm. Grievous bodily harm means serious bodily harm and that
expression will be used in these notes. (see DPP v Smith [1961] AC 290)

The actus reus of murder is the unlawful killing. The death must be shown to result from the
act of the D. The act of D must be a substantial operative cause of the death though it need
not be the sole cause. [See the notes on causation].

As well as the actus reus must have the necessary mens rea.

Murder is a crime of specific intent: there must be intent to kill or an intent to inflict grievous
bodily harm. Nothing else will do: recklessness is not sufficient for murder.

The prosecution must prove the necessary intent.

Note that simply because an event was the natural and probable consequence of a person’s
acts, does not mean that the consequence was intended or foreseen. Intention must be
established by looking at all the circumstances, drawing such inferences as appear proper in
the circumstances: s. 65A Criminal Procedure Ordinance (CPO) Cap. 221.

The effect of s.65A CPO is that malice aforethought (intent to kill or inflict grievous bodily
harm) cannot be established on an objective basis. Simply because a person dies during the
commission of a criminal offence e.g. a robbery does not make the death murder. (This was
called ‘the felony murder rule’ and has been abolished). There must still be the intent to kill
or to cause serious bodily harm.
4. The Actus Reus of Murder
With one exception, any act which is a substantial cause of death renders the doer responsible
for that death if the other elements of murder are proved. The exception is the taking away of
a man’s life by perjury, which is not, in law, murder or (it seems) manslaughter: R. v. Daniel
(1754) 1 Leach 44; 1 East P.C. 333

It is not necessary that there should be any contact between the killer and his victim or that
any blow is struck. Where a person does any act the consequence of which is death, such
killing may be murder although no stroke were struck by himself; as was the case of a jailer
who caused the death of a prisoner by imprisoning him in unhealthy conditions : R. v.
Huggins (1730) 94 ER 241

The defendant’s act does not have to be the sole or principal cause of death. It is enough that
the act contributed significantly to the death. (see R. v. Pitts (1842) C. & Mar. 248; R v.
Curley , 2 Cr.App.R. 96, 109, CCA).

For a discussion of cause of death, in the context of manslaughter see HKSAR v Sung Pak
Lun & Another [2006] HKEC 1656; CACC 215/2005.

Where there is an issue as to whether death was caused by some intervening event (e.g.
medical negligence), all the prosecution have to prove is that the accused’s act contributed
significantly to the death. See e.g. R v Malcherek & Steel [1981] 2 All ER 422.

A proper direction on a charge of causing death by dangerous driving is that the driving, if
dangerous, must be “a substantial cause” of death, as indicating that it must be something
more than de minimis: R. v. Henningan, 55 Cr.App.R. 262

A similar direction has been given in other cases of homicide (e.g. R. v. Cato 62 Cr.App.R.
41 where the Court of Appeal approved such a direction in a case of manslaughter resulting
from an injection of heroin and see also R v Kennedy (Simon) [2005] EWCA Crim 685 also a
manslaughter case where causation was discussed in detail).

The law has yet to evolve a definition of death. The current medical view is that the test is
one of brain stem death.

This problem of identifying the moment of death has not, in general troubled the courts too
much, though it may be of vital significance in some cases.
In R v Chan Yu-keung [1987] HKLR 276, the question of when the deceased had died was the
central issue. Roberts CJ, in his direction to the jury, referred to the medical evidence, which
had been adduced in the trial. He noted that one of the doctors had stated that it was the
unanimous opinion of the medical profession that a patient is dead when there is irreversible
brain stem death. That is when there is brain death, “not necessarily when there is a stoppage
of the heart and lungs, since these can continue to work even after there has been brain death
and may do so if artificially stimulated or ventilated.”

In that case D had confessed to deliberately disconnecting the life support system which was
keeping his brother alive.

The jury acquitted D because it could not be sure that the deceased had been alive, that is ‘in
being’, at the time when the respirator was disconnected.

5. Unlawful killing

This simply means without legal justification or excuse. It is not unlawful to kill in self-
defence. See the discussion on self-defence in R v Man Wai Keung 1990 Criminal Appeal
No. 403 (Judiciary web, HKLII) and R v Leung Ka Fai Criminal Appeal No 228 of 1991
(Judiciary Web and HKLII).

The execution of a prisoner in strict conformity with the sentence of the court is lawful.

Self-defence or bona fide surgery which results in the death of a person is not unlawful.

Death caused to another in self-defence is excusable. A defendant acting reasonably in self-

defence of himself or another or a police officer using reasonable force to make an arrest or
protect members of the public may be justified in doing using force that results in death. T he
defensive response must be proportional to the attack or imminent threat of harm. In
situations of mistake D is to be judged as if the circumstances were as he honestly believed
them to be see e.g. R v Beckford [1988] AC 130 and R v Martin [2002] 1 Cr App R 27;
[2001] EWCA Crim 2245.

The proportionality principle in the use of force in self-defence is illustrated by R v Siu King-
him and Others [1980] HKLR 126. The plea of self-defence was not available to an armed
robber who had shot a police officer during a robbery. The police officer returned fire but
was then shot dead by one of the robbers. Roberts C.J. pointed out that the armed gang had
invaded private premises, brandishing firearms. They had fired shots in the ceiling to make it
clear that their guns were loaded and that they meant business. In such circumstances it
would be commonsense for them to expect a predictable response or retaliation by whatever
force was available, including firearms.

Bona fide medical, including surgical, treatment by a competent and qualified person is
lawful, even if death is almost certain: see Re A (Children) (Conjoined Twins: Surgical
Separation) (2001) Fam 147, [2000] EWCA Civ 254.

Most surgical procedures involve a greater or lesser degree of risk, and death may result as
much from the medical treatment itself or from some unforeseen complication. If the death of
the patient were proved to be the result of “gross negligence”, the medical practitioner would
be guilty of manslaughter. The law relating to “gross negligence” has been clarified by the
decision of the House of Lords in R v Adomako [1995] AC 171. Essentially we need to ask
whether the negligence was so far short of the standard of care required by the circumstances
that the Dr is deserving of a criminal sanction. The same principle would apply whatever the
Defendant’s position.

In Re A (Children) (above) the English Court of Appeal took this to be a balancing of the
positive against the negative. The operation was in the best interests of both children, its
purpose being to give to one child a good prospect of a long and productive life and the other
child the bodily integrity and human dignity which was her right. The Court considered that
as death was not the purpose of the operation it could not be said to be unlawful, following
Airedale NHS Trust v Bland [193] 1 All ER 821. The Court considered there was no real
difference between the resort to self-defence and removing the threat to the healthy twin from
her sister, who, in effect was ‘draining her lifeblood’. The Court also found that the operation
was necessary to avoid inevitable and irreparable evil and was lawful.

It is always for the prosecution to prove that a homicide was unlawful.

6. Any reasonable creature

This term was once taken as referring to the appearance rather than the mental capacity of the
victim, and thus would exclude “monstrous births”. This statement of the law has been
considered and held to be wrong by the Court of Appeal in Re A (Children) (above). This
case involved two little girls who had been joined together from birth. Medical opinion was
that if the twins were not separated both would die, but if one was severed from the other, she
would survive but the other would die. The Court of Appeal, as a general proposition, held
that, “Once a seriously handicapped child is born alive, the position changes, and it is as
much entitled to the protection of the criminal law as any other human being.”
On this basis a reasonable creature simply means a live human being.

7. Person in being

There is some uncertainty about the precise moment when a child comes within the
protection of the law.

In R v Handley (1874) 13 Cox CC 79 it was held for a child to be the victim of the crime of
murder or manslaughter it would have had to exist as a live person, breathing and living by
reason of breathing through its own lungs alone “without deriving any of its living or power
of living by or through any connection with its mother.”

These general principles appear to have been accepted, (though obiter), by the House of
Lords in Att-Gen’s Reference (No 3 of 1994) 3 All ER 936.

8. The Queen’s Peace

This an old expression and refers to the concept of crime being an offence against the peace.
On that basis it is not unlawful to kill the Queen (of England)’s enemies i.e. invading forces.
The term is not applicable to HK since 1st July 1997 but the concept still applies.

9. Intent to kill or to cause serious bodily harm

Nothing less than one of these specific intents will do R v Moloney [1985] 2 WLR 648. In
R v Cunningham [1982] AC 566 the House of Lords confirmed that an intention to cause
grievous bodily harm remained sufficient mens rea. See also R v Vickers [1957] 2 QB 664;
R v Hyam [1975] AC 55; AG’s Ref (No.3 of 1994) [1996] Crim LR 268.

In HKSAR v Lau Cheong and Lau Wong FACC No.6 of 2001 (Judiciary Web) the CFA
confirmed there is nothing unconstitutional in the two intentions. See also the discussion in
HKSAR v Maria Remedios Coady Criminal Appeal No 119 of 1999 (judiciary web)

The prosecution must prove one or other intent existed at the time the act resulting in death
was done.
The actus reus of murder and manslaughter is the killing. The killing must be accompanied
by the intent.

The old phrase ‘malice aforethought’ in effect means no more than a deliberate act as
contrasted with an accidental act. Thus someone who kills his relative suffering from an
incurable illness out of compassion is ‘malicious’. Neither ill-will nor premeditation need be
present: R v Lo Yung-kan [1985] 1 HKC 302.

The act of killing must be deliberate, and must be accompanied by either the intention to kill
or to cause grievous bodily harm. The word ‘intention’ has the meaning attributed to in R v
Woollin [1999] AC 82; (1998) Crim LR 890. Unless either of the required intentions is
proved there cannot be a conviction for murder see e.g. HKSAR v Sze Kwan Lung and
Others Criminal Appeal No 92 of 2002 (Judiciary Web). Note in this case the judgement of
Stock JA.

In Woollin the House of Lords applied the decision of the House in R v Nedrick [1986] 1
WLR 1025. In summary it is that, (see Smith & Hogan (10th Ed) at pages 71-72):

(1) A result is intended when it is the actor’s purpose to cause it.

(2) A court or jury may also find that a result is intended, though it is not the actor’s
purpose to cause it, when –
(a) the result is a virtually certain consequence of that act, and
(b) the actor knows that it is a virtual consequence.

The effect of Woollin, is that where the jury has found that the defendant did foresee some
prohibited consequence as virtually certain, they should go on to consider whether or not he
intended the consequence. This avoids the ‘moral threshold’ test and brings within the ambit
of criminal intention the mercy killer, who clearly intends to cause the death.

See also the discussion about virtual certainty in R v Matthews, R v Alleyn [2003] 2 Cr
App R 30.

For a discussion of intent, motive and certainty see HKSAR v Lau Bo Ki [2006] HKEC
1762; CACC 412/2005 where a conviction for murder was reduced to manslaughter because
the evidence failed to show intent to inflict serious bodily harm.

Mercy killing is no defence. Say the deceased, suffering from a terminal illness, in
unbearable pain and liable to die at any time, requests his doctor to put him out of his misery.
The doctor gives an overdose of a painkilling drug which (as the doctor knows) would cause
death and did cause death. That would be an unlawful, deliberate and intentional killing. This
results from the definition of murder: one might kill for the best of motives but that does not
alter the intent.

10. Absence of the corpse

Evidence provided by the defendant of the fact of death, (such as by a confession) may be
sufficient proof of death: R v Davidson (1936) 25 Cr App 21 (CCA).

Death may also be proved by circumstantial evidence. In Re Cheng Kam Shui & ors [1977-
1979] HKC 265, reference was made to authorities, which established that the fact of death
could be proved by circumstantial evidence. In that case a number of seamen had been
accused of murdering a shipmate by throwing him overboard into shark-infested waters.

In missing body situations the circumstantial evidence must be so cogent and compelling as
to convince the jury that there is no other rational hypothesis other than that the deceased
(missing person) met their death at the hands of the D in circumstances amounting to murder,
or, perhaps, manslaughter: Att-Gen’s Reference (No. 4 of 1980) (1982) 73 Cr App R 40
(CA); HKSAR v Chan Man Lok and Anor [2003] HKCA 404. See also R v Nicholas
Tom Rose [2006] EWCA Crim 1720 (bailii web).
LW5606A Criminal Law Lecture No. 6. Voluntary Manslaughter (Provocation,
Diminished Responsibility and Suicide Pacts)

(Chapter 10 of Jackson)

1. Introduction (Prosecutor will not use this, defensive lawyer will work toward this)

Generally, any unlawful homicide which is not classified as murder will be manslaughter.
The different between murder and Voluntary Manslaughter is that murder will result
mandatory life sentence and VM is nothing to up to life.
If the element of can be establish the D will try to rise this.

A defendant charged with murder may plead not guilty to murder but guilty to manslaughter
on one of the grounds in the Homicide Ordinance. The prosecution may accept that plea.

If the prosecution do not accept that plea, the trial proceeds as a murder trial. The jury can
return a verdict of manslaughter provided that one of the grounds for a verdict of
manslaughter in the Homicide Ordinance is supported by evidence at the trial. If the jury find
there are no such grounds it is open for them to convict the defendant of murder. See e.g. R v
Jimmy Johnson [1983] HKLR 903; HKSAR v Coady Criminal Appeal No. 119 of 1999;
HKSAR v. Tang Kin Kwong [2005] HKCA 25; CACC000488/2002, (Judiciary Web) on
the responsibilities of judges where the defendant is charged with murder and there is
evidence which could result in a manslaughter verdict.

Where the defendant is convicted of manslaughter, the court has a sentencing discretion. It
can impose any sentence, other than a suspended sentence (see Schedule 3, CPO), up to life
imprisonment.

There are no guidelines for sentence in manslaughter because of the diverse ways in which
manslaughter can be committed.

There are two types of manslaughter namely voluntary manslaughter and involuntary
manslaughter.
2. Voluntary Manslaughter

Here D intended to kill or to or cause serious bodily harm but has successfully pleaded one of
the special or partial defences available to a charge of murder. This will reduce D’s liability
to manslaughter meaning that he is not subject to a mandatory sentence of life imprisonment.

These special defences to murder are the following:-

(i) Provocation (s.3 Homicide Ordinance Cap 339)

(ii) Diminished Responsibility (s.4 Homicide Ordinance (Cap 339))
(iii) Suicide Pact (s.5 Homicide Ordinance (Cap 339))

3. Provocation

Provocation is not a defence to crime generally but is a special defence available to a charge
of murder.

Provocation is not a defence to a charge of attempted murder. See R v Brazas [1972] Crim
LR 367.

Initially a common law defence “provocation” is now provided for by the Homicide
Ordinance s.4:-

“Where on a charge of murder there is evidence on which the jury can find that the
person charged was provoked (whether by things done or by things said or by both
together) to lose his self-control, the question whether the provocation was enough to
make a reasonable man do as he did shall be left to be determined by the jury; and in
determining that question the jury shall take into account everything both done and
said according to the effect which, in their opinion, it would have on a reasonable
man.“

In R v Duffy [1949] 1 QB 63 (must be cooling off period)- Devlin J. said:

“Provocation is some act or series of acts, done by the dead man to the accused, which
would cause in any reasonable person, and actually causes in the accused, a sudden
and temporary loss of self-control, rendering the accused so subject to passion as to
make him or her for the moment not master of his mind.”
That statement referred only to acts and there was discussion in subsequent cases whether
words could amount to provocation.

The situation is now clarified by s.4 Homicide Ordinance (which follows the English
Homicide Act 1957) and the jury are now required to consider two questions:

a) Was the D provoked into losing his self-control? (Subjective)

b) Was his reaction that of a reasonable man? (Objective)

The issue must be raised by the defence or become apparent from the evidence if not
specifically raised by the defence. In trying a charge of murder the judge must place before
the jury all possible alternatives which are open to them on the evidence even if provocation
is not raised by the defence. See HKSAR v Pang Bing Yee [1984] HKLR 298

Once the trial judge has decided there is sufficient evidence upon which a jury, properly
directed, could find the defendant was provoked, the judge must leave it to the jury to decide:

a) whether the defendant was (in fact) provoked to lose his self control, and if so,
b) whether the provocation was enough to make a reasonable man do as he did?

3.1. Was there provocation?

The issue is raised when there is evidence which might (if accepted) lead a jury to consider it
is possible that D was provoked to lose his self-control, whether D has relied upon
provocation as a defence or not.

There must first of all be provocation.

This is a subjective test: was the defendant provoked?

Provocation can be by things done, words said or by a combination of both, R v Pang Bing-
yee [1984] HKLR 298; R v Doughty (1986) 83 Cr App Rep 319.

The provocation may take the form of a series of conduct.

The provocation need not necessarily emanate from the victim nor be directed at D, see
Leung Yuet-man v R [1991] HKLR 300, R v Davies [1975] 1 All ER 890.
There must be a loss of self-control (which has been brought about by the provocation). This
means an examination of all the circumstances including any cooling off period i.e. the time
that has elapsed between the last conduct relied upon a provocation and the fatal blow. A
delay between the conduct relied upon and the fatal blow does not mean the defence of
provocation does not arise but plainly it is a matter to be considered by the jury when
deciding whether D was in fact provoked by the conduct, see R v Ibrams (1982) 74 Cr App
Rep 154; R v Thornton [1992] 1 All ER 306*; R v Thornton [1996] Crim L R 597*; R v
Pearson [1992] Crim LR 193; R v Ip Siu-man [1984] Cr App No 531 of 1984.

Note that there is a burden upon an accused who alleges provocation to bring that issue into
the trial and to support it so that there is some evidence which a jury can consider. Unless
there is some evidence, the judge is not required to give a provocation direction and can
withdraw that issue from the jury. For examples of this see HKSAR v Manjit Singh
Criminal Appeal No. 282 of 2002 (Judiciary web, HKLII); HKSAR v Ma Siu Chui
Criminal Appeal No 605 of 2002 (Judiciary Web, HKLII); HKSAR v Chan Yeun Law
Criminal Appeal No.397 of 2003 (Judiciary Web, HKLII)

3.2 The reaction of the reasonable man

DPP v Camplin [1978] AC 705. (If an ordinary person held the same level of control)

In this case the reasonable man was defined as:

“an ordinary person of either sex, not exceptionally excitable or pugnacious but
possessed of such powers of self-control as everyone is entitled to expect that his fellow
citizens will exercise in society as it is today.”

Characteristics such as “age”, “mental capacity”, “race” and “sexual inclination”, whether
normal or abnormal, could be taken into account by the jury when they were trying to
determine whether the provocation was enough to make a reasonable man do as D had done.

The question of characteristics was further considered in the New Zealand case of R v
McGregor [1962] NZLR 1069 which was followed in R v Newell (1980) 71 Cr App Rep
331:-
“The characteristic must be something definite and of sufficient significance to make the
offender a different person from the ordinary run of mankind, and have also a sufficient
degree of permanence to warrant its being regarded as constituting part of the individual’s
character or personality...[and]...there must be some real connection between the nature of
the provocation and the particular characteristic of the offender by which it is sought to
modify the ordinary man test.”

There has been an obvious conflict between the Court of Appeal in England and the House of
Lords over the account to be taken of personal characteristics.

The approach to personal characteristics and their relevance to provocation was recently
again considered by the English courts in R v Smith (Morgan) [2001] AC 146.

Smith is not consistent with the Privy Council decision in R v Luc Thiet Thuan and Others
[1996] 2 HKCLR 45 where it was stated that “…. the reasonable man referred to by section
3 of the Act of 1957 and section 4 of the Ordinance was a person who shared such of the
individual characteristics of the defendant as the jury might consider would affect the gravity
of the provocation to him but had the power of self-control to be expected of an ordinary man
or woman, or young person, as appropriate; that there was no basis upon which mental
infirmity on the part of the defendant which had the effect of reducing his powers of self-
control below that to be expected of an ordinary person could, as such, be attributed to the
ordinary person for the purposes of the objective test in provocation …”  (Emphasis added)

In Mok Tsan Ping [2001] 2 HKLRD 325 the HK Court of Appeal confirmed the authority
of Luc. Smith has not been adopted in Hong Kong and we must look to Luc’s case on
characteristics when considering provocation in Hong Kong.

Since 1st July 1997 English HL, PC & CA decisions are only persuasive for HK. However we
can note that in A-G for Jersey v Dennis Peter Holley Privy Council Appeal No. 3 of 2004
(accessible through www.privy-concil) the PC disapproved the reasoning in Smith and
preferred the approach in Luc.

The (Eng) CA approved the reasoning in Holley in R v Anthony Gerrard van Dongen &
Another [2005] EWCA Crim 1728 and in R v Susan Shickle [2005] EWCA Crim 1881.

This brings the law on provocation in UK into line with the law of Hong Kong: Camplin and
Luc.

In Shickle it was stated (per Scott-Baker LJ) that “The effect of Holley has been to tighten
the second, or objective, test for provocation by limiting the characteristics of the defendant
to which the reasonable man may be clothed. No longer is the test, as propounded by Lord
Hoffman in Morgan Smith, one of excusability.”

3.4 Proportionality of the retaliation.

The general rule was that the retaliation must be reasonably proportionate to the
provocation. In Mancini v DPP [1942] AC 1 the House of Lords said:-
“... it is of particular importance... to take into account the instrument with which the
homicide was effected, for to retort, in the heat of passion induced by provocation, by a
simple blow, is a very different thing from making use of a deadly instrument like a
concealed dagger. In short, the mode of resentment must bear a reasonable retaliation if the
offence is to be reduced to manslaughter.” Per Lord Simon.
However, there is no longer a rule of law of reasonable retaliation. The reasonableness of the
retaliation is only a consideration in deciding whether the reasonable man would have acted
in the same way as the defendant.
In Phillips v R [1969] 2 AC 130 indicates that the objective question is to be considered in
the following way:-
“... the question ... is not merely whether in their opinion the provocation would have
made a reasonable man lose his self control but also whether, having lost his self-control, he
would have retaliated in the same way as the person charged in fact did.”

Also note these Hong Kong Court of Appeal decisions on provocation and the relevance of
personal characteristics: HKSAR v Pang Kam-Chuen [2003] HKCA, CACC117/2003;
HKSAR v Chung Kei Tung [2004] HKCA 297, CACC130/2003. Personality defects
and/or mental infirmity which reduce a person’s self control below that expected of a
reasonable person are irrelevant. But individual peculiarities which bear on the gravity of
the provocation should be taken into account.

3.4 Cumulative provocation

Provocative conduct or words need not be confined to one discrete event.

It is essential to judge each case on its own facts: R v Thornton (1993) 96 Cr App R 112; R
v Brown [1972] 2 QB 229, (1972) 56 Cr App R 564.

In R v Davies (P) [1975] QB 691, (1975) 60 Cr App R 253, (on the facts of the case), the
(Eng) CA said a direction that the jury could review the whole of the conduct throughout the
years preceding V’s death was too generous. But c.f. R v Pearson [1992] Crim LR 195.
In Thornton, the (Eng) CA rejected the argument that the words ‘sudden and temporary’ are
no longer appropriate. The argument that domestic violence from D’s husband over a period
of time caused a sudden and temporary loss of control so as to amount to provocation in law
was rejected. [Subsequent to the dismissal of her appeal against her conviction for murder,
there was a reference back to the CA which, after hearing more medical evidence quashed the
murder conviction and substituted a verdict of manslaughter on the basis of diminished
responsibility.]

Reference was made in Thornton to R v Ahluwalia [1992] All ER 889; R v Humphreys

[1995] 4 All ER 1008; R v Morhall [1993] 3 WLR 330. Those cases indicate that a
prolonged sequence of provocative incidents may create a slow burning resentment in the
defendant, so that even a relatively trivial incident may trigger a very violent reaction. This
has sometimes been called the ‘last straw’ factor. The courts however dislike the use of last
straw as straw indicates something trivial and the phrase is said to diminish the whole
concept of provocation. Reference is now sometimes made to the “slow burn” concept. What
can be discerned from the authorities is that the previous history of a relationship, (usually
domestic), can be considered in order to place in its true context the reaction of the defendant
to what might otherwise be a minor incident. For the proper approach to the relationship
between a history of provocation and post-traumatic stress syndrome or the “Battered Woman
Syndrome”, see R v Ahluwalia [1992] 4 All ER 889, (1992) 96 Cr App R 133, see also R v
Thornton, (above) R v Ahluwalia was approved in Luc Thien Thuan v R [1996] 1 HKC
663 [1996] 2 HKCLR 45.

Note that a planned attack because of past grudges and disputes must be distinguished from
an attack under provocation. Even in slow burn situations there must be something with
triggers a sudden and temporary loss of control, see the discussion in HKSAR v Li Tim
Chuen [2003] HKCA 385, CACC000564.

3.5 Self-Induced Provocation

Section 4 Homicide Ordinance does not exclude self-induced provocation as a defence to a

murder charge. However this is a problem area.

Where self-induced provocation is an issue D is trying to rely on the provocation where he

himself brought it about.
In R v Edwards [1973] AC 648; (1973) 57 Cr App R 157, (PC), an appeal from the Full
Court of Hong Kong, it was held that the defendant was not entitled to rely on the predictable
results of his own conduct. The defendant alleged that he had made a blackmailing demand of
the deceased: his defence was a mixture of self-defence and provocation. The deceased had
reacted violently and had drawn a knife.

Edwards was considered by CA in R v Leung Ka-fai [1992] 1 HKCLR 255. It declined to

follow Edwards, as it felt the PC had not fully considered s. 4 HO. The CA preferred R v
Johnson (1989) 89 Cr App R 148. In Johnson the (Eng) Court of Appeal held that the fact
that the defendant caused an adverse reaction in the deceased, which in turn caused him to
lose his self-control, did not prevent his raising provocation.

In R v. Lai Hon Man [1993] 1 HKC 219, CA held that D could rely on the predictable
results of his own conduct as constituting provocation.

4. Diminished Responsibility

Like provocation this defence is not available for any offence other than murder. It is
similarly not available on a charge of attempted murder: R v Campbell [1997] Crim LR
495.

Diminished Responsibility did not exist in the common law and was introduced as a special
defence to murder by the Homicide Ordinance. Section 3 of the Homicide Ordinance follows
similar English legislation and provides:-

“Where a person kills or is a party to the killing of another, he shall not be convicted of
murder if he was suffering from such an abnormality of mind (whether arising from a
condition of arrested or retarded development of mind or any inherent causes induced by
disease or injury) as substantially impaired his mental responsibility for his acts or
omissions in doing or being a party to the killing.”

Abnormality of mind is a state of mind which a reasonable man would consider abnormal and
is given a wide definition.

4.1 Raising Diminished Responsibility

The Prosecution must first prove that D killed or was a party to the killing. Then according to
s.3 (2) of the Homicide Ordinance the legal burden of raising and proving diminished
responsibility is on D. The standard of proof is on the balance of probabilities.

A good example of diminished responsibility appears in R v Jimmy Johnson [1983] LR 44.

The case also illustrates the responsibilities and power of judges. See also on this point
HKSAR v Tang Kin Kwong CACC No. 488 of 2002 (Judiciary web). Note also this case
addresses issues of intent and awareness in the context of diminished responsibility.
For a discussion of the burdens of proof between the prosecution and the defence see
HKSAR v Tsui Chu Tin John [2005] 1 HKC 518.

Abnormality of the mind

The leading case on this element of the defence is R v Byrne [1960] 2 QB 396 which was
applied in HKSAR v Tsang Chiu Tik and Anor [1999] 4 HKC 845.

In Byrne it was said:-

‘To satisfy the requirements of the subsection the accused must show:

(a) that he was suffering from an abnormality of mind; and (b) that such
abnormality of mind: (i) arose from a condition of arrested or retarded
development of mind or any inherent causes or was induced by disease or
injury; and (ii) was such as substantially impaired his mental
responsibility for his acts in doing or being a party to the killing.”
And,

(b)‘Whether the accused was at the time of the killing suffering from any
‘abnormality of mind’ in the broad sense which we have indicated above is a
question for the jury On this question medical evidence is, no doubt, of
importance, but the jury are entitled to take into consideration all the
evidence including the acts or statements of the accused and his demeanour
They are not bound to accept the medical evidence, if there is other material
before them which in their good judgment, conflicts with and outweighs it. The
aetiology of the abnormality of mind (namely whether it arose from a
condition of arrested or retarded development of mind or any inherent causes
or was induced by disease or injury) does, however, seem to be a matter to be
determined on expert evidence.”
 And,

(c)`Abnormality of mind´, which has to be contrasted with the time-honoured

expression in the M’Naghten Rules, `defect of reason´, means a state of mind so
different from that of ordinary human beings that the reasonable man would term it
abnormal. It appears to us to be wide enough to cover the mind’s activities in all its
aspects, not only the perception of physical acts and matters and the ability to form a
rational judgement whether an act is right or wrong, but also the ability to exercise
will-power to control physical acts in accordance with that rational judgment.”

The abnormality of mind must have substantially impaired the defendant’s mental
responsibility for his act or acts. The question of what is substantial is a matter for the jury.
They should apply their common sense. The word “substantial” means something more than
“trivial” and less than total impairment: R v Egan 95 Cr App R 278

A mere abnormality of mind is not sufficient: it must be sufficient to impair the responsibility
for the defendant’s acts: R v Lai Kuen [1972] HKLR 442; R v Ho Wai Leung [1977-1979]
HKC 42.

In HKSAR v Leung Wai Chung [1999] 2 HKC 471 HKLRD 196, it was held that “--s.3
HO did not extend to a normal person who behaves abnormally through drink or extreme
emotion, such as jealousy, frustration or anger. It was for the court to determine whether
there was evidence sufficient to identify a disease of the mind as that term was understood by
the legislation. The list of causes named in section 3(1) of the Ordinance was exhaustive, it
must be shown that the abnormality of mind “whether arising from a condition of arrested or
retarded development of mind or any inherent causes or induced by disease or injury……”

This is not limited to defects of understanding (see insanity) and is wide enough to cover
irresistible impulses.

4.3. The Cause of the Abnormality of the Mind

Medical evidence is essential, see e.g. Ho Wai-leung v R [1977] HKLR 344; R v Lau Man-
cheung [1986] HKLR 1172*

In R v Tandy (1988) 87 Cr App R 45 it was held that D must establish:

(a) that he was suffering from an abnormality of mind at the time of the killing;
(b) that the abnormality of mind was induced by disease, [in this case the disease of
alcoholism]; and
(c) that the abnormality of mind induced by alcoholism was such as substantially
impaired his mental responsibility for the act which caused death.

4.4 Role of the Judge

Diminished responsibility can be a complicated issue. It is important that the jury have all
relevant matters laid out to them by the judge. For an example of the problems where the jury
is not clearly directed upon all relevant issues see e.g. HKSAR v Tsui Chu Tin John [2005]
1 HKC 518, Criminal Appeal No 401 of 1999 (Judiciary Web, HKLII).

We should note HKSAR v. Tang Kin Kwong [2005] HKCA 25; CACC000488/2002,
which addresses the role of the judge and also makes it clear that there is “---no
inconsistency between diminished responsibility on the one hand and on the other the
accused knowing at the time what he was doing and in engaging in a conscious move.”

Diminished responsibility is not insanity under a different name.

Note the discussion of diminished responsibility in HKSAR v Liu Chun Yip [2006] HKEC
1616; CACC 266/2005.

4.5 Diminished Responsibility and Intoxication

If a defendant was intoxicated either as a result of drink, drugs or other substance that is not
an inherent cause within the requirements of the section, and is therefore largely irrelevant to
the issue of diminished responsibility.

The principle was summarised by the English Court of Appeal in R v Dietschmann [2001]
EWCA Crim 2052 as follows:

“The general rule that drink does not give rise to an abnormality of the mind due to
inherent causes was authoritatively stated in R v Fenton (1975) 61 Cr. App. R. 261 and
confirmed in R v Gittens (1984)79 Cr. App. R. 272. In line with those authorities, R v Tandy
(1988)87 Cr. App. R. 45 established that drink is only capable of giving rise to a defence
under section 2 [Homicide Act 1957 which is equivalent to s. 3 Homicide Ordinance] if it
causes damage to the brain or produces an irresistible craving so that consumption is
involuntary.”
The House of Lords endorsed this decision (R v Dietschmann [2003] UKHL 10) stating that
the correct approach for the jury in the case of a defendant who both suffered from a mental
abnormality and was also intoxicated was to ignore the effects of intoxication and to ask
whether, leaving out the drink, the defendant’s other condition(s) of mental abnormality
substantially impaired his responsibility for the killing. Simple voluntary drunkenness was
incapable of founding a plea of diminished responsibility.

This principle was emphasised in R v Wood [2008] 2 Cr. App. R. 34 where it was said:

“Dealing with the point very broadly, the consumption of alcohol before a defendant
acts with murderous intent and kills cannot without more, bring his actions within the
concept of diminished responsibility. …. [S]ave in the context of offences of specific intent
and proof of that intent, criminal acts committed under the influence of self induced
intoxication are not for that reason excused. …. [A] defendant who voluntarily takes alcohol
and behaves in such a way which he may not have behaved when sober is not normally
entitled to be excused from the consequences of his actions…”

The same approach is followed in Hong Kong, see HKSAR v Chiu Wai Kan Vicken
(CACC 438/2009), [2011] 2 HKLRD 643, a case of drug induced psychosis.

In R v Gittens (1984) 79 Cr. App. R. 272, [1984] QB 698, the defendant suffered from
depression and had been in hospital. On a visit home he had an argument with his wife and he
clubbed her to death. He then raped and killed his step-daughter. He had been drinking and
taking drugs for medication. The Court of Appeal suggested that where the jury had to deal
with both diminished responsibility and intoxication, they should be directed to consider:

(1) whether the defendant would have killed as he did without having been intoxicated, and if
the answer to that was yes,

(2) whether he would have been suffering from diminished responsibility when he did so.

R v Tandy [1989] 1 All ER 267 confirms abnormality of mind may be induced by

alcoholism which is regarded as a disease. However a craving for drink is not of itself
alcoholism. If a person is in control when they started their voluntary drinking then the state
of mind was induced by self-induced intoxication and there is not an abnormality of mind
within the definition of diminished responsibility.

See also R v Sanderson (1994) 98 Cr App R 325 which addresses long term use of heroin
and cocaine.
These issues are also discussed in HKSAR v Liu Chun Yip [2006] HKEC 1616; CACC
266/2005: the cause of the disease of the mind may be self-inflicted (effects of long term
drinking or drug taking) but a purely transient state brought on by recent consumption of
drugs or alcohol is to be disregarded for the purpose of the defence of diminished
responsibility

5. Survivors of Suicide Pacts

Until 1967 it was an offence to attempt to commit suicide. A person who aided and abetted
another to do so was liable as a party to murder.

S.33A Offences Against the Person Ordinance (Cap 212) OAP) provides the present position;
It is not a crime to commit or attempt to commit suicide.

But note s.33B:

(1) A person who aids, abets, counsels or procures the suicide of another, or an attempt by
another to commit suicide, shall be guilty of an offence triable upon indictment and shall be
liable on conviction to imprisonment for 14 years. (Amended 50 of 1991 s. 4)
(2) If on the trial of an indictment for murder or manslaughter it is proved that the accused
aided, abetted, counselled or procured the suicide of the person in question, the jury may find
him guilty of the offence so proved.
(3) No proceedings shall be instituted for an offence under this section except with the
consent of the Secretary for Justice. (Amended L.N. 362 of 1997)

S.5 HO provides a defence for the survivor of suicide pacts by reducing what would
otherwise be murder to manslaughter.

A “suicide pact” is an agreement between two or more persons having for its object the
death of all of them.

There must be a ‘common agreement’ between two or more persons.

The defendant must have had the ‘settled intention’ to commit suicide with another.

It must be proved that he was a party to the other person killing himself or being killed by a
third person.
If it is proved by the prosecution that the defendant killed the other or was a party to the other
killing himself the burden is upon the defendant to show he acted under a suicide pact
between himself and the other. If D does that he will be convicted of manslaughter.

The standard of proof is the civil standard: on the balance of probabilities.

LW5606A Criminal Law Lecture No. 8. Involuntary Manslaughter and Infanticide.

(Chapter 10 of Jackson)

1. Introduction

Involuntary manslaughter is unlawful homicide without an intention to kill or to cause serious

bodily harm. There is the actus reus of murder but the specific intent to kill or cause really
serious bodily harm is not present. Indeed, the defendant may not even have considered that
death might result.

Liability for involuntary manslaughter can arise in one of two ways:

(a) An unlawful and dangerous act which resulted in the victim’s death
(b) Gross (or criminal) negligence which resulted in the victim’s death.

Unlawful and dangerous act manslaughter is sometimes known as “constructive

manslaughter”.

R v Goodfellow (1986) 83 Cr App Rep 23 establishes that the facts of a particular case may
give rise to both situations.

For a similar situation in Hong Kong see HKSAR v Harry Sudirman, aka Sim Hok Gwan
Harry, Criminal Appeal No. 486 of 2003.

2. Unlawful act manslaughter.

2.1 Introduction

The defendant must have caused the death by an unlawful and dangerous act.

The only mens rea required is an intention to do the act coupled with any fault.

In R v Mitchell [1983] 2 WLR 938 it was stated that it had to be shown that:

(a) The defendant had done an unlawful and dangerous act,

 (b) The act was dangerous in the sense that a sober and reasonable person would
inevitably recognize that it carried some risk of harm (an objective test),

(c) The act was a substantial cause of death,

(d) The defendant intended to commit the act as distinct from intending its consequence.

It is irrelevant that the defendant was unaware of the unlawful nature of his act or that it was
dangerous or that he had not foreseen the consequences. This means that the prosecution do
not have to prove that the defendant knew that his act was unlawful or dangerous.

2.1 Unlawful Act (object test)

The act must be a criminal act simply meaning conduct which is unlawful, see e.g. R v
Franklin (1883) 15 Cox CC 163, R v Lamb [1967] 2 QB 981, (1967) 2 All ER 888.

It would appear that an omission will not suffice for this type of manslaughter, R v Lowe
[1973] 1 All ER 805.

The “unlawfulness” must be other than that arising through simple negligence, Andrews v
DPP [1937] AC 576, but note the position with gross negligence which is discussed later.

In DPP v Newbury and Jones [1971] 2 All ER 365 the House of Lords held that the test to
be applied was as stated by Edmund Davies J in R v Church [1966] 1 QB 59 (1965) 49 Cr
App R 206, which is:

‘…the conclusion of this court is that an unlawful act causing the death of
another cannot, simply because it is an unlawful act, render a manslaughter verdict
inevitable. For such a verdict .... to follow, the unlawful act must be such as all
sober and reasonable people would inevitably recognise must subject the other
person to, at least, the risk of some harm resulting therefrom, albeit not serious
harm.”

2.2 Dangerous Act

What is dangerous is judged by the reasonable man test: DPP v Newbury [1977] AC 500,
(HL); DPP (Jamaica) v Daley [1980] AC 237 (PC).

Dangerous in this context means that the average person (the reasonable and sober bystander
is the term used in some cases) would recognise the risk of some form of harm, albeit not
serious harm, see e.g. R v Larkin [1943] 1 All ER 217; R v Church [1966] 1 QB 217.
The “sober and reasonable" bystander was to be endowed with whatever knowledge the
defendant possessed.

‘Harm’ means physical harm, as opposed to emotional harm, see e.g. R v Dawson (1985) 81
Cr App R 150.

Direct physical contact does not appear necessary, fright or panic brought about by the
defendant may be sufficient.

In R v Watson (C) (1989) 89 Cr App R 211, during the course of a burglary, the intruders
were confronted by the occupant who was 87 years old. He was subjected to verbal abuse by
the burglars. He died of heart failure about 90 minutes after the burglary. The Court of
Appeal considered the unlawful act included the whole of the burglary, and that the intruders
must have become aware that the occupant was very old and frail. The appeal was allowed on
another ground.

In R v Dawson (1985) 81 Cr App R three robbers, one carrying a pickaxe handle and
another a replica gun, threatened a 60 year old petrol filling station attendant. The attendant
pressed the alarm button and the robbers fled. Shortly afterwards the attendant collapsed and
died from heart failure. He had suffered from heart disease for some time. None of the
robbers knew this. It was held in that case that it did not follow that the defendants as
hypothetical sober and reasonable persons would “inevitably recognise” that some physical
harm would result from their acts.

2.3 Substantial Cause of Death (objective test)

This is a question of fact, see: R v Mitchell [1983] 2 WLR 938; R v Goodfellow (1986) 83
Cr App R 23; R v Watson [1989] 1 WLR 684.

See also the discussion in R v Carey, C and F [2006] EWCA Crim 17 (baili web). The
victim received a slap on the cheek and ran to escape. After a short distance she collapsed
and died. The medical evidence was that she had a weak heart and the stress of running had
caused a fatal heart attack. Although the defendant was plainly guilty of the initial assault (an
unlawful and dangerous act) he was not guilty of manslaughter because the assault was not a
substantial cause of death. It was the heart attack which had caused the death.
2.4 The unlawful act and consent (don’t spend too much time on causation, no CN
on criminal)

See the detailed discussion of this issue in R v Cato [1976] 1 WLR 110; [1976] 1 All ER
260; (1975) 62 Cr App R 41 in the context of drug taking and the self-administration of
drugs supplied by another person.
The issue is whether the self-administration breaks the chain of causation. See the discussion
and review of earlier cases in Simon Kennedy v R [2005] EWCA Crim 685 (bailii web).

If the defendant supplies drugs to the victim who then consumes them and dies because of an
overdose the defendant is not guilty of manslaughter (the chain of causation is broken by the
victim taking the drugs himself) but if the defendant (at the victim’s request) were to inject
drugs into the victim, as a result of which the victim dies, he would be guilty.

Note also there is no “defence” either of ex turpi (claiming that the victim was at fault) or
contributory negligence in criminal law either whether death results from an unlawful and
dangerous act or from gross negligence. If a participant in an unlawful and dangerous act
dies, the other person or persons engaging in that unlawful and dangerous act could still be
convicted of manslaughter, see e.g. R v Perry Wacker [2002] EWCA Crim 1944 and R v
Willoughby [2004] EWCA Crim 3365 (bailii web). See also the case of R v Martin [2001]
EWCA Crim 2245, where the defendant was guilty of manslaughter by shooting at and
killing a burglar who was breaking into the defendant’s home. This case is also relevant to
issues of self-defence.

2.5 Unlawful act and Intoxication

DPP v Majewski [1977] AC 142 and DPP v Beard [1920] AC 479, indicate that self-
induced intoxication can be raised as a defence to crimes of specific intent, but not to crimes
of basic intent. 

As manslaughter is a crime of basic then self-induced intoxication is no defence to

manslaughter charge.

In R v Lipman [1976] 1 All ER 260, the Court of Appeal held that the defendant was rightly
convicted of manslaughter when he was in a delusional state caused by taking the
hallucinatory drug LSD. The defendant had consumed LSD, and went to bed with his
girlfriend. He had hallucinations believing that he was being attacked by giant snakes and
thinking he was defending himself, strangled his girlfriend.
The unlawful act was the battery on the victim even though the defendant was not conscious
of his act.

Lipman is authority that if a person consciously and deliberately takes drugs not on medical
prescription, but in order to become hallucinated, he cannot plead his self-induced disability
as a defence to a crime of basic intent.

2.6 Escape from the fear of violence

There are circumstances where a person can be convicted of manslaughter because his
conduct has induced in another the compelling desire to escape potential violence and, in
escaping, that person receives fatal injuries.

These would be situations where:

i. the victim immediately before he sustained the injuries was in fear of being hurt
physically;
ii. this fear was such that it caused him to try to escape;
iii. while he was trying to escape, and because he was trying to escape, he met his
death;
iv. his fear of being hurt there and then was reasonable and was caused by the
conduct of the accused;
v. the accused’s conduct which caused the fear was unlawful;
vi. and his conduct was such that any sober and reasonable person would recognize
it is as likely to subject the victim to at least the risk of some harm resulting
from it, albeit not serious harm.

But note the case of R v Carey mentioned earlier. And also note the case of R v
Arobieke [1988] Crim LR 314, where the deceased, who was frightened of the defendant,
jumped onto the railway line at a station when he saw the defendant on another platform.
He died when he came into contact with the live electric line. The defendant was not
guilty of manslaughter because he was not doing an unlawful and dangerous act simply
by being at the station and neither had he done anything to cause the victim to apprehend
immediate violence

As in all cases of manslaughter, it is not necessary to prove that D knew that his act was
unlawful; however it must be proved that his act or acts were intentional and dangerous.
3. Gross Negligence Manslaughter

In the past the terms “recklessly” and “gross negligence” have been used to describe what
essentially is the same type of involuntary manslaughter. These days it appears more
appropriate to use the term grossly or criminally negligent rather than recklessness.

To prove gross negligence D has to be under a duty of care and be in breach of that duty
causing the death of the victim.

Before D’s culpability could be established however, the jury have to be satisfied that:-

“... the negligence of the accused went beyond a mere matter of compensation between
subjects and showed such disregard for the life and safety of others as to amount to a crime
against the state and conduct deserving of punishment.” R v Bateman (1925) 19 Cr App
Rep 8

3.1. R v Adomako [1994] 3 All E R 79

But the law relating to manslaughter by negligence has been clarified by the decision of the
House of Lords in Adomako.

In Adomako the defendant was an anaesthetist during an eye operation. He failed to notice
that the tube carrying oxygen to the patient had become disconnected, with the result that the
patient died. There was a time lapse of about 4½ minutes between the disconnection and the
alarm from the machine which monitored the patient’s blood pressure. The defendant was
unaware of the disconnection until the alarm had sounded.

In dismissing the defendant’s appeal against conviction for manslaughter, the House of Lords
laid down the following principles:

(1) Manslaughter by criminal [gross] negligence involved a consideration of the ordinary

principles of the law of negligence including the ascertainment of whether or not the
defendant was in breach of his duty of care,
(2) If the breach of the duty of care was established the jury must then consider
 (3) whether the breach resulted in the death,
(4) If the jury came to this conclusion they must then decide if whether such breach of the
duty of care was characterised as grossly negligent and therefore a crime.
(5) It was for the jury to decide whether the factual matrix, having regard to the risk of
death involved, showed that the defendant’s conduct was so bad that in all the
circumstances it amounted to a criminal act or omission.

There is now a simple and universal test of gross negligence. Motor manslaughter does not
form a different or special category.

Adomako confirms that the notion of recklessness in manslaughter was correctly expressed
in R v Stone and Dobinson [1977] QB 354 (1977) 64 Cr App R 186. Note the remarks of
Lane LJ:-

“It is clear from that passage that indifference to an obvious risk and
appreciation of such risk, coupled with a determination nevertheless to run it, are
both examples of recklessness. What the prosecution have to prove is a breach of
duty in circumstances that the jury feel convinced that the defendant’s conduct can
properly be described as reckless. That is to say a reckless disregard of danger to
the health and welfare of the infirm person. Mere inadvertence is not enough. The
defendant must have been proved to have been indifferent to an obvious risk of
injury to health or actually to have foreseen the risk but to have determined
nevertheless to run it.”

The House of Lords overruled its judgment in R v Seymour [1983] AC 493 and declined to
follow R v Lawrence [1982] AC 510.

Also note here the judgment of the Court of Appeal in R v Chang Wai Kwan [1994] 1 HKC
201, shortly before the judgment in Adomako. In that case D parked his heavy vehicle on
the pavement on a sloping road. Before leaving his vehicle he failed to apply the handbrake
or engage the gears. The vehicle rolled down the hill, crashed into some railings and killed a
pedestrian. The defendant was convicted of manslaughter.

Litton JA (as he then was) did not consider that a direction on the lines of R v Seymour
(supra), was necessary or appropriate. As he pointed out, to convict the jury must first of all
be satisfied that the defendant had created an obvious and serious risk. Such a direction
would convey to any responsible jury that a high degree of negligence was necessary to
constitute the threshold for the crime of manslaughter.
As we have seen earlier, normally in considering recklessness in terms of criminal liability,
we use a subjective test, i.e. the defendant must be shown to have been aware of the risk (R v
Cunningham [1957] 2 QB 396). But since the test in Adomako does not require the
defendant to have been aware of the risk, it is more appropriate to use the term “gross
negligence” rather than “recklessness” in considering liability for involuntary manslaughter.

3.2 Manslaughter in the context of death arising from dangerous driving.

This issue was considered by the UK Court of Appeal in R v Ballard [2004] EWCA 3305,
[2005], [2005] 2 Cr. App. R. (S) 31 an appeal against sentence, and in R v Coates and
Graves [2004] EWCA (Crim) 3049.

Ballard had driven in an erratic and dangerous manner, repeatedly mounting the pavement
and driving at groups of pedestrians, making handbrake turns, wheel spins and driving at
speed before hitting a pedestrian and causing his death. He had also consumed excess
alcohol, being three times over the legal limit. He was 18 years of age at the time of the
offences.

Manslaughter was charged rather than causing death by dangerous driving because of the
serious danger involved, the combination of circumstances and the total disregard shown for
the safety of other road users. These factors warranted a prosecution for manslaughter
(maximum sentence life imprisonment) rather than death by dangerous driving (which carries
a maximum penalty of 10 years imprisonment). The sentence of 11 years was upheld on
appeal. Plainly this was a situation far beyond simple dangerous driving. There was
sustained, deliberate and extremely dangerous driving and a demonstrated total disregard for
the safety of other road users. The driving at groups of pedestrians was, in effect, using the
car as a weapon against, or a means of frightening, those pedestrians. The high level of
alcohol was further aggravation.

Under s. 36 of the Road Traffic Ordinance (Cap. 374) death by dangerous driving in Hong
Kong carries a maximum of 10 years imprisonment upon conviction on indictment and two
years’ imprisonment upon summary conviction. Should a similar situation to Ballard occur in
Hong Kong, manslaughter rather than death by dangerous driving would, it is submitted, be
the appropriate charge.

In Coates and Graves, G owned a haulage firm and C was one of his drivers. C collided with
a car which had broken down and was stationary at the roadside killing the driver who was
standing by the car. On that day C had driven for more than the number of hours permitted by
the relevant (UK) legislation. He had fallen asleep at the wheel and was convicted of causing
death by dangerous driving, a conviction which was upheld on appeal. G was convicted of
manslaughter on the basis that he had caused his drivers, including Coates, to falsify their
driving records to enable them to work longer than the permitted driving hours. Because of
the excessive hours of work they had become so tired that, when driving, they were a danger
to other road users. G’s conduct was such a flagrant breach of his duty to other road users that
it amounted to gross or criminal negligence.

These two cases follow the approach in Stone and Dobinson, (above), and R v Adamoko,
(above), and are consistent with the approach in Kong Cheuk Kwan v R (1986) 82 Cr. App.
Rep. 18 in the sense that the conduct in question involves an obvious and serious risk of
physical injury and in the judgment of reasonable members of society should merit a severe
criminal penalty as opposed to a civil claim and/or sanction by a professional body.

Both cases indicate the sort of conduct which will properly justify a charge of manslaughter
in the event of death: there must be an added element of seriousness and culpability over and
above a death by dangerous driving. What that added element will be must depend upon the
circumstances of the particular case. On the reasoning in Ballard, manslaughter would be the
appropriate charge, it is suggested, where death results from a road racing situation; where
the vehicle is aimed at other persons intending that they should be frightened or in the type of
the situation addressed in Dennis Chiu Tat-Shing v R [1985] 2 HKC 487.

For a detailed discussion of manslaughter by gross negligence by the Court of Appeal of

England and Wales see R v Amit Misra, R v Rajeev Srivastava [2004] EWCA Crim 2375
4. Alternative basis for manslaughter verdict

Where there is more than basis for an involuntary manslaughter conviction, it is important
that sentence is upon the basis of the conviction. The Court of Appeal addressed such a
situation in HKSAR v Harry Sudirman, aka Sim Hok Gwan Harry (unrep. Criminal
Appeal No 486 of 2003).

The defendant was convicted after a trial in the Court of First Instance of unlawfully using an
instrument with intent to procure a miscarriage and of manslaughter. During the procedure he
carried out, the deceased suffered a cardiac arrest. Attempts to revive her were unsuccessful.
The cause of death was given as adverse effects of drugs which the defendant had
administered. On the evidence led at trial, a manslaughter verdict could have been returned
either on the basis of death resulting from an unlawful act or from gross negligence. The
Court remarked upon the advisability of the jury being asked the basis of the conviction in
such situations.

The Court observed that whilst judges are not required in every case to find out the basis of
the jury's verdict in manslaughter cases it is desirable that they should do so where this may
affect sentence.

Given the wide range of sentencing options available upon a manslaughter conviction, it can
only assist in sentencing for the judge to know the basis of the jury verdict and to approach
sentence accordingly.

5. Corporations (cannot specific intent , but can charge manslaughter)

A corporation cannot be convicted of murder (or attempted murder). Problems of how a

corporation forms intent and the mandatory penalty of life imprisonment are relevant
considerations to the impossibility of a corporation committing murder.

The same considerations do not however apply to reckless or involuntary manslaughter:

crime of basic intent and the penalty is not fixed by law. A fine could be imposed upon a
corporation upon a conviction for manslaughter.

See the article in Asia Pacific Law Review, Vol 10, No. 2 at page 161 by Gary
Slapper: Corporate Manslaughter: The Changing Legal Scenery.

6. Infanticide

Section 47C of the Offences Against the Person Ordinance, Cap 212 provides:

Where a woman by any wilful act or omission causes the death of her child being a
child under the age of 12 months but at the time of the act or omission the balance of
her mind was disturbed by reason of her not having fully recovered from the effect of
giving birth to the child or by reason of the effect of lactation consequent upon the birth
of the child, then, notwithstanding that the circumstances were such that but for the
provisions of this section the offence would have amounted to murder, she shall be
guilty of infanticide and shall be liable to be punished as if she were guilty of
manslaughter.
The section provides that where a woman kills her child before it reaches 12 months in age,
and there is evidence to show that at the time of the killing the balance of her mind was
disturbed by: the effect of giving birth, or the effect of lactation consequent upon giving birth
to the child, a jury is entitled to acquit her of murder, but find her guilty instead of
infanticide.

The defence is clearly designed to provide for women who may be very seriously affected by
post-natal depression. To that extent it has affinities with diminished responsibility in its
consequences.

Note that the defence is not available where a woman kills one of her children who is over 12
months of age even though she may be suffering from post-natal depression as a result of the
birth of another child. Nor does it apply where a woman suffering from post-natal depression
kills someone else’s child. Diminished responsibility might however be raised in such a
situation depending upon the medical evidence.
LW5606A Criminal Law Lecture No. 9. Non-fatal Offences against the Person

(Chapter 11 of Jackson)

1. ATTEMPTED MURDER (preparation is not attempted murder, up till you actually)

The prosecution must prove an actual intent to kill and the doing of acts which are
sufficiently proximate to the intended act to show clearly what was intended and that the
intent was being furthered. As an example see e.g. HKSAR v Woo Cheung-Sin CACC
606/2002 (Judiciary web)

Normally an attempt to commit an offence is punishable as if the completed offence had been
committed. (s.159J Crimes Ordinance (Cap 200). But the offence of attempted murder
(unlike the completed offence of murder) does not attract a mandatory life sentence. The
maximum sentence for attempted murder is life imprisonment however sentence is at the
discretion of the judge. (s.159J Crimes Ordinance (Cap 200) and ss.13,14 Offences against
the Person Ordinance (Cap 212).

Attempted murder might arise where life has been saved by an operation where there was an
attack with intent to kill or where causation cannot be proved e.g. a doctor has given an
overdose of pain killer intending to put an end to the patient’s suffering but the body has been
cremated and it is not possible to show the overdose actually brought about the death.

For a charge of attempted murder it must be shown that there was intent to kill (Prosecution
must show). An intent to cause grievous bodily harm only is not enough. At common law
there can only be a conviction for an attempt if the intent was to do the prohibited act but for
some reason e.g inadequate means, the act intended has not been completed. (specific intent
crime and attempt to cause GBH not enough)

2. THREATS TO KILL

Offences against the Person Ordinance (Cap. 212), s 15

Any person who, maliciously sends, delivers, or utters, or directly or indirectly causes to be
received, knowing the contents thereof, any letter or writing threatening to kill or murder any
person shall be guilty of an offence triable on indictment, and shall be liable to imprisonment
for 10 years.
It is a jury question whether the letter amounts to a threat within the section: R v Boucher
(1831) 4 C & P 562; R v Tyler (1835) 1 Mood 428.

The threat must be made in writing; it must be directed at another person. It is not an offence
in this jurisdiction, (save for the offence of criminal intimidation), to make an oral threat to
kill. A lawful excuse could exist where the threat has been made for the prevention of crime
or in self-defence, provided that it was reasonable to make the threat in all the circumstances.
What is reasonable is a matter for the jury: R v Cousins [1982] QB 526 (1982) 74, Cr App
R 363. The onus is on the prosecution to disprove reasonable excuse: The evidence of the
history of the relationship and dealings between the parties is admissible as tending to prove
absence of lawful excuse (ibid). (at least 2 people)

An example of this offence is HKSAR v Ma Chui Sing [2004] 2 HKLRD; [2004] 3 HKC
384; (hklii). Ma placed poison in foods at super-markets and then wrote letters and sent a fax
to newspapers containing threats to kill (the ‘HK Bin Laden case’). The case also deals with
administering noxious substances. S 23 of the OAPO.

3. CONSPIRING OR SOLICITING TO MURDER

Offences against the Person Ordinance (Cap. 212), s 5

All persons who within Hong Kong conspire, confederate, and agree to murder any person,
whatever his nationality or citizenship and wherever he may be, and any person who within
Hong Kong solicits, encourages, persuades or endeavours to persuade, or proposes to any
person to murder any other person, whatever his nationality or citizenship, and wherever he
may be, shall be guilty of an offence and shall be liable to imprisonment for life.

Conspiracy to murder is governed by the general common principles of the law of

conspiracy.

The publication and circulation of an article in a newspaper may amount to an encouragement

or an endeavour to persuade to murder, although it is not addressed to any one in particular:
R v Most (1881) 7 QBD 244. The jury was directed that if they concluded that the defendant
intended to and did encourage or endeavour any person to murder any other person of
whatever nationality or citizenship and that such encouragement or endeavour to persuade
was the natural and reasonable effect of the article, they could find him guilty. This direction
was held to be correct.
There must be actual communication between the defendant and the person solicited.

It does not matter that the latter’s mind was unaffected by the communication: R v Krause
66 JP 121, R v McCarthy [1903] 2 IR 146.

In deciding whether the words amount to a solicitation the jury should take account of (i) the
language used, (ii) the occasion when they were used, (iii) the person/s to whom the words
were used, and (iv) the circumstances surrounding their use. See R v El-Faisal, [2004]
EWCA Crim 456 (bailii) and R v Abu Hamza [2006] EWCA Crim 2918 (bailii).

The mens rea required is based on the same principles governing an attempt to commit a
criminal offence.

4. BIGAMY

Offences Against the Person Ordinance (Cap. 212), s 45

Not a recommended actions

Any person who, being married, marries any other person during the life of the former
husband or wife shall be guilty of an offence triable upon indictment, and shall be liable to
imprisonment for 7 years. Provided that nothing in this section shall extend to any person
marrying a second time whose husband or wife has been continually absent from such person
for the space of 7 years then last past, and has not been known by such person to be living
within that time, or to any person who, at the time of such second marriage, has been
divorced from the bond of the first marriage, or to any person whose former marriage has
been declared void by the sentence of any court of competent jurisdiction.

The word ‘marries’ is used in the Ordinance, though ‘went through a form of marriage with’
would be more accurate.

The prosecution must show that the accused was already married at the time of the alleged
bigamous marriage. That will normally involve showing that the accused has previously gone
through a valid ceremony of marriage either in HK or in another jurisdiction and that that
marriage was still legally intact at the time of the alleged bigamous marriage.

The Hong Kong Marriage Ordinance (Cap. 181) governs marriage celebrated in Hong Kong.
A valid marriage is (a) a marriage celebrated or contracted in accordance with the provisions
of the Marriage Ordinance (Cap 181); (b) a modern marriage validated by the Marriage
Reform Ordinance (Cap 178); (c) a customary marriage declared to be valid by the Marriage
Reform Ordinance (Cap 178); (d) a marriage celebrated or contracted outside Hong Kong in
accordance with the law in force at the time and in the place where the marriage was
performed.

An honest and reasonable belief by the defendant in a fact which, if true, would make the
second marriage lawful is a good defence. and no distinction is to be drawn between facts the
result of which would be the defendant’s innocence because the defendant did not come
within the enacting words at all (e.g., that the spouse had died, even though known to have
been alive within the last seven years), and facts the result of which would be the defendant’s
exclusion from the enacting words by the proviso (e.g., that there had been a divorce): R v
Tolson (1889) 23 QBD 168 (belief in death of spouse), R v King [1964] 1 QB 285, 48 Cr
App R 17 (belief that first marriage void): R v Gould [1968] 2 QB 65, 52 Cr App R 152,
(belief that first marriage dissolved).

The prosecution must prove: (a) the celebration of the first marriage and the identity of the
parties; (b) the validity of the first marriage; (c) its subsistence at the date of second marriage;
and (d) the celebration of the second ‘marriage’.

5. COMMON ASSAULT AND BATTERY

ASSAULT IS CUMMING HAM RECKLESSNESS

Offences Against the Person Ordinance, Cap. 212 s.40:

Any person who is convicted of a common assault shall be guilty of an offence triable
either summarily or upon indictment, and shall be liable to imprisonment for 1 year.

Note that s.40 does not define the offence and only provides for the penalty. Common assault
is a common law offence not defined by statute.

Despite assault and battery being two separate offences at common law, s.40 refers only to
common assault. The section provides that any person convicted of a common assault shall
be guilty of an offence. The section does not therefore create the offence, nor does it define
what is a common assault. By necessary implication from the wording of the section,
“common assault” is to be construed as including a “battery”.

Treating “assault” as including battery will cause little difficulty in the majority of cases.
However there may be a battery without an assault, the “attack from behind” situation. In that
event the particulars of the indictment should properly allege the defendant assaulted the
victim by beating him/her.

In DPP v Taylor; DPP v Little [1992] 1 QB 645 95 Cr App R 28 DC, an information

which alleged that the defendant “assaulted and battered” was held to charge two offences
and to be bad for duplicity. That decision did not hold that “assaulted and beat” would be bad
for duplicity, acknowledging that this was the phrase by reference to which many thousands
of people had been convicted over many years. However, there does not seem to be any
logical difference and the court said that adoption of the expression “assaulted by beating”
would be immune from argument.

5.1. Assault
Cunningham recklessness (subjective)
‘Assault” is frequently used to include both an assault and a battery.

They are however two distinct offences. Strictly, “assault” is an independent offence and
should be treated as such: Fagan v Metropolitan Police Commr [1969] 1 QB 439 52 Cr
App R 700 DC.

An assault is any act by which a person intentionally, or recklessly, causes another to

apprehend immediate and unlawful personal violence: R v Venna [1976] QB 421 at 429 61
Cr App R 310 at 314 CA; Smith v Chief Superintendent Woking Police Station, 76 Cr
App R 234, DC; R v Ireland; R v Burstow [1998] AC 147 HL.

A threat to use violence at some time in the future is not an assault: there is no immediate
threat. Immediacy is however a matter of degree.

The act must be accompanied by a hostile intent calculated to cause apprehension in the mind
of the victim. Where the hostile intent is not present, there will be no assault, see R v Lamb
[1967] 2 QB 981 51 Cr App R 417 CA unless it is proved that the alleged assailant was
reckless as to whether the complainant would apprehend immediate and unlawful violence.

5.2. Battery

A battery is an intentional or reckless touching (direct or indirect) of another without consent:

R v Williams (G), 78 Cr App R 276 at 279 CA; DPP v Morgan [1976] AC 182 HL (per
Lord Simon at pp 216, 217). The offence is committed however slight the force.
5.3. Recklessness in assault and battery

The test of recklessness in assault and battery is that propounded in R v Cunningham [1957]
2 QB 396, 41 Cr App R 155 CCA: R v Spratt 91 Cr App R 362, CA; and see R v Savage;
DPP v Parmenter [1992] 1 AC 699 HL. Recklessness in common assault, therefore,
involves foresight of the possibility that the complainant would apprehend the immediate and
unlawful application of violence and taking that risk; in battery, it involves foresight of the
possibility that the complainant will be subjected to the application of unlawful force,
however slight, and taking that risk. See the discussion in HKSAR v OH Eugene Jae-Hoon
HCMA 369/2002 (Judiciary web).

5.4. Voluntary intoxication

Assault and battery being crimes of “basic intent”, self-induced intoxication provides no
defence and is irrelevant. The same principle applies to the voluntary taking of drugs: DPP v
Majewski [1977] AC 443 HL.

5.5. Mistake of fact

Where an accused may have been mistaken as to the facts, he must be judged according to his
mistaken view of the facts: R v Williams (G) (above), R v Beckford 1988] AC 130 PC. In
such cases the accused must use no more force than would be reasonable in the circumstances
as he believed them to be. It for the tribunal of fact to say what degree of force is reasonable
in the circumstances as the accused believed them to be, see R v Owino [1996] 2 Cr App R
128 CA.

A mistake of law, or of mixed law and fact, e.g. a belief that an arrest is unlawful when it is
lawful, is not a defence to the use of force.

5.6. Mistake of fact induced by voluntary intoxication

A defendant is not entitled to rely on a mistake of fact which has been induced by his
voluntary taking of alcohol or drugs: R v O'Grady [1987] QB 995, 85 Cr App R 315 CA,
DPP v Majewski [1977] AC 443 HL, R v Lipman [1970] 1 QB 152 53 Cr App R 600 CA.
5.7. Examples of assault.

Striking at a person with a stick or a fist is an assault, even though the victim ducks out of the
way and the defendant makes no contact. Drawing a weapon such as a knife or throwing a
bottle or glass with intent to wound or strike, will constitute an assault; so will any other like
act indicating an intention to use violence against the person of another.

Generally there will be some gesture on the part of the defendant to cause the victim to
apprehend immediate violence.

It used to be thought that mere words could not be an assault. But in R v Wilson [1955] 1 All
ER 744, it was stated that a shout of “Get the knives” would be an assault. In Ansell v
Tomas [1974] Crim LR 31, a civil case, a threat to forcibly eject a person from a meeting if
they did not leave voluntarily was held to be an assault.

In R v Ireland; R v Burstow [1998] AC 147 HL, silent telephone calls causing psychiatric
injury were held to be an assault. The suggestion that words could never suffice for an assault
was considered “unrealistic and indefensible” (per Lord Steyn). The question in each case is
whether the defendant intentionally – or recklessly - caused the victim to apprehend
immediate personal violence.

Note that there can be a battery without an assault: the sudden and unexpected blow to the
head from behind.

5.8. Examples of battery

Where an assault involves a battery, it is immaterial whether the battery is inflicted directly
by the body of the offender or through the medium of some weapon or instrument controlled
by his act. It will thus be battery where the defendant causes a dog to bite the victim.

Touching a victim’s clothes (assuming he is wearing them) is a battery: R v Day (1845) 173
ER 1042.

The actus reus and the mens rea must be present at the same time, but it is not necessary that
the mens rea should be present at the inception of the actus reus; it may be superimposed
upon it.
In Fagan v Metropolitan Police Commr [1969] 1 QB 439 52 Cr App R 700 DC (wheel of
a car driven onto, and allowed to remain on, a person’s foot); this was held to be an assault
because although the act was initially unintentional, it was a continuing act which became
unlawful when F, knowing the wheel was on the person’s foot, allowed it to remain there.
In relation to the offence of “battery”, the fundamental principle is that every person’s body is
inviolate. The effect is that everybody is protected not only against physical injury but against
any form of physical molestation: Collins v Wilcock 79 Cr App R 229 DC. There are
exceptions, for example, the lawful exercise of the power of arrest, the use of reasonable
force when the necessity to act in self-defence arises.

A broader exception exists to cover for the inevitable contact of daily life: e.g. jostling in
crowded places and touching a person for the purpose of engaging his attention. In each case
the question is whether the physical contact has in the circumstances gone beyond generally
acceptable standards of conduct.

In HKSAR v Leung Chun Wai Sunny [2003] HKCFI 993 Mag. App. 000152/2002
(judiciary web) (though the conviction was quashed on other grounds) Tong, J. held that
shouting though a loud hailer which was held very close to a police officer’s ear and which
caused the officer temporary pain but no injury was a battery. There had been an indirect
contact and the act of shouting though the loud hailer was, in the circumstances hostile to the
officer.

Another example of a battery would be falsely shouting “fire” in a crowded cinema with the
result that the audience rush out and are trampled underfoot: R v Martin (1881) 8 QBD 54.

In R v Santa Bermudez [2004] Crim LR 471 the defendant remained silent when asked by
a police officer, who was lawfully searching him, whether he had any sharp objects in his
pocket. The police officer continued the search and pricked her finger on a syringe. This
was a battery. The defendant had deliberately created a dangerous situation and had either
intended or was reckless that the victim would come into contact with the syringe.

5.9. Defences

5.9.1. Consent

The prosecution must prove absence of consent: see R v Brown (A) [1994] 1 AC 212 HL.

There are restrictions upon the defence of consent where actual or grievous bodily harm or a
wound is caused. In Brown there had been consensual conduct in satisfaction of sado-
masochistic desires which resulted in personal injuries. The issues were whether there was
consent to the act and, if so, whether the act was one to which consent could be given. The
satisfaction of sado-masochistic desires did not constitute good reason and consent to such
conduct is no defence. (note the discussion on the this case in R v Feston Konzani [2005]
EWCA Crim 706.)

The prosecution and conviction of the appellants (men of full age) for offences contrary to
sections 20 and 47 of the (England and Wales) Offences against the Person Act 1861 in
Brown in respect of consensual sado-masochistic activities was an interference in their
private lives which was “necessary in a democratic society”: Laskey, Jaggard and Brown v
UK, 24 EHRR 39 ECHR (ruling that there had been no violation of Article 8 of the
European Convention on Human Rights).

R v Brown (A) was followed by the Hong Kong Court of Appeal in R v Yuen Chong &
Anor [1996] 3 HKC 205, a case involving consensual beatings contended to be ‘religious
mortification’. A properly regulated boxing match conducted according to the rules of boxing
would, however, be a different matter, even if injury resulted, at least at present.

Brown was distinguished in R v Wilson (A) [1996] 2 Cr App R 241 CA, in which the
accused, at his wife’s instigation, had branded his initials on her buttocks with a hot knife.
There was no evidence that what he did was any more dangerous or painful than tattooing
and there was no aggressive intent. It was not in the public interest that such consensual
activity between husband and wife in private should be made the subject of a criminal
prosecution; accordingly, in the circumstances, the wife’s consent afforded a defence.

The extent of Brown was discussed by the (UK) Court of Appeal in the successful appeal
against conviction in R v Mohammed Dica [2004] EWCA Crim 1103 (Bailii), and see also
Konzani (above). The Court of Appeal was concerned that the impact of the authorities
dealing with sexual gratification could too readily be misunderstood. It stressed that Brown is
authority that violent consensual conduct involving the deliberate and intentional infliction of
bodily harm is unlawful notwithstanding its purpose was the sexual gratification of willing
participants. It would, however, be taking Brown too far to suggest that consensual acts of
sexual intercourse were unlawful merely because there might be a known risk to the health of
one of the participants.

A guide to what does constitute such good reason for what would otherwise be a assault (and
battery) is Att-Gen’s Reference (No 6 of 1980) [1981] QB 715 73 Cr App R 63: “properly
conducted lawful games and sports, lawful chastisement or correction, reasonable surgical
interference, dangerous exhibitions, etc.”

In R v Barnes The Telegraph 7 th January 2005 the (UK) Court of Appeal considered when
criminal proceedings should be brought against a player who injured another player in the
course of a sporting event. In the Court’s view (per Lord Woolf CJ) criminal prosecutions for
sporting injuries should be reserved to situations where the conduct was sufficiently grave to
be properly characterised as criminal. Whilst as a general rule following Brown a person
could not consent to the infliction of bodily harm there were exceptions, one of which was
physical injury in the course of contact sports. Public policy, however, limited the defence to
where there was implicit consent to what had occurred. In highly competitive sports, conduct
outside the rules could be expected to occur in the heat of the moment. Even if that conduct
justified a warning or a sending off, it might still not reach the threshold level required for it
to be criminal. The level was an objective one and depended upon the type of sport. The level
at which it was played, the nature of the act and its circumstances, the amount of force and
the state of mind would all be relevant in deciding whether the criminal threshold had been
reached.

The Court of Appeal of England and Wales in R v Jones (T) 83 Cr App R 375, added rough
and undisciplined horseplay to the list, provided there was no intention to injure. Even if
consent was absent, a genuine belief that it was present would constitute a defence, see R v
Aitken and Others 95 Cr App R 304, Ct-MAC (Royal Air Force Officers taking part in
“mess games”)

5.9.2. Apparent consent

A patient’s ignorance of the fact that the dentist who treated him was suspended from
practice did not vitiate the patient’s consent to treatment so as to make the dentist guilty of
assault; there would be an assault only where there was consent to the actions of another in
the mistaken belief that they or he were other than they truly were: the concept of the identity
of the person was not to be extended to cover the qualifications or attributes of the person: R
v Richardson [1998] 2 Cr App R 200 CA.

Richardson is apparently inconsistent with R v Tabassum [2000] Cr App R 328 [2000]

Crim LR 686 where the defendant, who was not medically qualified, persuaded women to let
him touch their breasts by representing that this was for the purposes of a database he was
compiling for doctors. The women had only consented to the acts from D’s representations.
The court apparently proceeded on the basis that the defendant’s deception meant that their
consent was not a true consent because it was given because of their belief that D had
medical qualifications.

See HKSAR v Chan Wai Hung [2000] 3 HKCFAR 288 (HKLII) on consent induced by
lies.
5.10. Lawful correction

It is a good defence that the alleged common assault was merely the correcting (punishing) of
a child by its parents, provided that the correction is moderate in the manner.

By reference to R v H (Assault of child: Reasonable chastisement) [2001] 2 FLR 431 CA,

this defence remains available to a parent accused of assaulting his or her child so as to
occasion actual bodily harm. However, by analogy with A v UK, 27 EHRR 611, ECHR,
consideration should be given to such matters as the reasonableness of the chastisement; the
nature and context of the defendant’s behaviour, its duration, the age and characteristics of
the child, the physical and mental consequences for the child, and the reasons given by the
defendant for the conduct.

5.11. Self-defence

This topic is covered in detail in semester B. For now note the principle that a person may
lawfully use force against another in order to defend himself, another person or even
property.

The law allows such force to be used as is reasonable in the circumstances. The force used
must be proportionate to the attack (whether actual or threatened). So, a person may not use
a gun to defend himself against a punch. That would be disproportionate and so
unreasonable. The courts accept that in the heat of an unexpected attack, it will be difficult
for a person to judge precisely what degree of force is reasonable.

The circumstances mean the circumstances as the defendant believes them to be. This
includes an honest yet mistaken belief. See R v Williams [1987] 3 All ER 411 and
Beckford v R [1988] AC 130.

It has to be rise by the D. It was to be proportionate , the prosecution has to prove

mistaken believe does not have to reasonable, force does have to reasonable.
must be a mistake of fact not of Law
DPP V Morgan
Rv O
5.12 Necessity

Necessity may excuse what would otherwise be an assault. Doctors, members of the
emergency services and police officers may do things to a person rendered unconscious in an
accident which would ordinarily be a battery, a wounding or grievous bodily harm if done
without consent, provided they are doing no more than is necessary to save life, see e.g. F v
West Berkshire Health Authority [1989] 2 All ER 545 HL. This is based upon the
assumption that the injured person would have consented to the acts had they been aware of
the circumstances. However if the act is against the person’s known wishes, neither consent
nor necessity provides a defence.

5.13 Defence of Property

It is a good defence that the assault was committed by the defendant in defence of property
e.g. to prevent entry to premises to restrain the taking or destroying of goods.

5.14 Prevention of crime, effecting lawful arrest

See the Offences Against the Person Ordinance (Cap. 212), s 36 and the Police Force
Ordinance (Cap 232), ss. 10 and 63.
LW 5606A Criminal Law Lecture No. 10. Non-Fatal Offences against the Person. No. 2.

(Chapter 11 of Jackson)

1. ASSAULT OCCASIONING ACTUAL BODILY HARM

Offences against the Person Ordinance (Cap. 212), s 39

Any person who is convicted of an assault occasioning actual bodily harm shall be guilty of
an offence triable upon indictment, and shall be liable to imprisonment for three years.

As with s. 40 which prescribes the penalty for common assault, s. 39 simply provides the
punishment upon conviction: there is no definition of the offence. This again indicates that
assault occasioning actual bodily harm remains a common law offence. The indictment
should properly allege assault occasioning actual bodily harm contrary to common law but
punishable under section 39 of the Offences Against the Person Ordinance (Cap. 212).

2. Ingredients of the offence

There must, first of all, be an “assault”.

Once the assault or battery is proved, it must be proved that the assault (which includes
“battery”) “occasioned” or caused the bodily harm. This is purely a question of causation.
Where the harm is not the direct result of the defendant’s act, as, for example, where his
conduct was such as to provoke the victim to jump from a moving car, the test is whether the
victim’s act was the natural result of the defendant’s action or words, in the sense that it was
something that could reasonably have been foreseen as the consequence of what he was
saying or doing: R v Roberts 56 Cr App R 95 CA. The chain of causation will only be
broken if what the victim did was something that no reasonable man could be expected to
foresee.

2.1. Mens rea

The mens rea of assault occasioning actual bodily harm is the same as for common assault.

The only extra ingredient which has to be proved is that the assault in fact occasioned actual
bodily harm: R v Roberts, above; R v Venna [1976] QB 421 61 Cr App R 310 CA; R v
Savage; DPP v Parmenter [1992] 1 AC 699 HL.
2.2. Actual bodily harm

“Bodily harm” has its ordinary meaning and includes any hurt or injury calculated to interfere
with the health or comfort of the victim.

The hurt or injury need not be permanent, but must be more than merely transient or trifling:
R v Donovan [1934] 2 KB 498 25 Cr App R 1 CCA.

Actual bodily harm is capable of including psychiatric injury but it does not include mere
emotions, such as fear, distress or panic: R v Chan-Fook, 99 Cr App R 147 CA; R v
Ireland; R v Burstow [1998] AC 147 HL.

Expert evidence will be needed in psychiatric injury situations.

In a case of “non-physical assault” (“stalking”), if the prosecution rely on symptoms

described by the victim (fright/anxiety/physical aches and pains) as evidence of bodily harm,
there should be expert evidence to prove that the symptoms other than pain amounted to
psychological illness or injury and that the pains experienced were the result of the conduct
complained of: R v Morris (Clarence Barrington) [1998] 1 Cr App R 386 CA.

3. Defences

This will be the same as for common assault.

4. WOUNDING, CAUSING GRIEVOUS BODILY HARM

s. 17 Offences against the Person Ordinance (Cap. 212)

Any person who-

(a) unlawfully and maliciously, by any means whatsoever, wounds or causes any grievous
bodily harm to any person; or
(b) shoots at any person; or
(c) by drawing a trigger or in any other manner, attempts to discharge any kind of loaded
arms at any person, with intent in any of such cases to maim, disfigure, or disable any
person, or to do some other grievous bodily harm to any person, or with intent to resist or
prevent the lawful apprehension or detainer of any person, shall be guilty of an offence
triable upon indictment, and shall be liable to imprisonment for life
s.19 Offences against the Person Ordinance (Cap 212)
 Any person who unlawfully and maliciously wounds or inflicts any grievous bodily
harm upon any other person, either with or without any weapon or instrument, shall
be guilty of an offence, triable upon indictment, and shall be liable to imprisonment
for three years.

Section 18 of the Ordinance gives a wide definition of “loaded arms” for the purposes of
section 17.

Section 17 created four offences (wounding, causing grievous bodily harm, shooting and
drawing a trigger of a loaded arm), any of which could be committed with any of the intents
specified; the intents may be laid in the alternative: R v Naismith [1961] 2 All ER.

Section 19 creates two offences (wounding and inflicting grievous bodily harm). There may
be grievous bodily harm without there being a wound in the technical sense in which
“wound” is used. These offences may be laid in the alternative.

Note that the s17 offence is a crime of specific intent requiring the prosecution to prove that
the defendant wounded etc. the victim intending to do GBH etc. whereas the s19 offence is a
crime of basic intent and no specific intent is needed. The s 17 offence carries a maximum
penalty of life imprisonment whereas the s19 offence attracts a lesser penalty of three years
imprisonment.

4.1. Alternative verdicts

On a charge of wounding with intent contrary to section 17, “unlawful wounding” contrary to
section 19 and assault occasioning actual bodily harm contrary to section 39 of the Ordinance
are alternatives, as will be the section 39 offence on a charge of unlawful wounding contrary
to section 19: see R v Savage; DPP v Parmenter [1992] 1 AC 699 HL.

On a charge of causing grievous bodily harm with intent, contrary to section 17, verdicts of
wounding or inflicting grievous bodily harm, contrary to section 19, or of assault occasioning
actual bodily harm, contrary to section 39, are available alternatives: see R v Mandair [1995]
1 AC 208 HL.

On a charge of an offence of wounding or inflicting grievous bodily harm, contrary to section

19 of the Offences Against the Person Ordinance, a verdict of assault occasioning actual
bodily harm is an available alternative: R v Wilson; R v Jenkins [1984] AC 242 HL.
4.2 Ingredients of the offences

(a) Grievous bodily harm

“Grievous bodily harm” should be given its ordinary and natural meaning of really serious
bodily harm, and it is undesirable to attempt any further definition of it: DPP v Smith [1961]
AC 290, HL; R v Cunningham [1982] AC 566 HL; R v Brown (A) [1994] 1 AC 212 HL;
R v Brown and Stratton [1998] Crim LR 485 CA.

It is not necessary that grievous bodily harm should be either permanent or dangerous.

Bodily harm includes psychiatric injury: R v Ireland; R v Burstow [1998] AC 147 HL.
There is no definitive list of the kind of injuries “really serious”. Whether the injuries amount
to grievous bodily harm is a question of fact in each case: HKSAR v Lo Tak Chi [2000] 1
HKC 385; HKSAR v Liu Man Kuen (unrep, HCMA 604 of 2000) HKSAR v Law Kwok
Fai (unrep. Criminal Appeal No. 204 of 2003).

The issue of the meaning of grievous bodily harm arose in HKSAR v Law Kwok Fai
(unrep. Criminal Appeal No. 204 of 2003). The victims suffered lacerations of the scalp,
which required suturing, as well as bruising, swellings and abrasions.

As to whether the victims suffered grievous bodily harm, the Court noted that ‘grievous
bodily harm’ was not defined in the Offences Against the Person Ordinance, nor did the
Ordinance contain a definitive list of injuries that were to be regarded as grievous bodily
harm. Decided cases had held that the phrase would be given its ordinary and natural
meaning of really serious bodily harm and that it was undesirable to attempt a further
definition. The court approved the approach in R v Smith [1961] AC 290 (HL); R v
Cunningham [1982] AC 566 (HL); R v Brown and R v Brown and Stratton [1998] Crim
LR 485 (CA). It was not necessary that the grievous bodily harm should be either permanent
or dangerous: R v Ashman (1858) 1 F & F 88. The nature and extent of the injuries to the
victims, were, on any common sense view, capable of being serious injuries and that was
sufficient to bring them within grievous bodily harm.

The cases of R v Dica [2004] EWCA Crim 1103 and R v Konzani [2005] EWCA Crim
706 deal with the situation where a defendant with AIDS or who is HIV positive infects his
sexual partner. A person could be convicted of inflicting grievous bodily harm if, knowing
that he was suffering from a serious sexual disease, he recklessly transmitted that disease
through consensual sexual intercourse to a person who was ignorant of, and therefore
unlikely to have consented to, the risk of infection.

(b) Cases of joint enterprise

Where several persons inflict injuries on a victim, it is the totality of the injuries which are to
be considered in relation to a charge of causing grievous bodily harm with intent contrary to
section 17. It is immaterial that one person joins in the attack slightly after the others have
begun to inflict injuries, which may have included the most serious single injury. He is aiding
the commission of the offence and participating in it as soon as he joins in. See the extensive
discussion of participation in HKSAR v Hui Chi Wai & Others (unrep, Crim App 78 of
1999) and in HKSAR v Law Kwok Fai (unrep. Criminal Appeal No. 204 of 2003)
(Judiciary web).

Note also R v McCarthy [2003] EWCA Crim 484 (Bailii web), R v Powell and English
[1999] 1 AC 1 and R v Uddin [1989] 1 Cr App R 319.

(c) “Cause” or “inflict”

It was formerly accepted that “causing” was wider than “inflicting” and that where the
allegation was of causing grievous bodily harm, the issue was a straightforward one of
causation. Did the injury result from the act of the accused? There is no requirement of
physical contact between the defendants and the victim. The distinction has, however, been
reduced to vanishing point by the decision of the House of Lords in R v Ireland; R v
Burstow, above, to the effect that grievous bodily harm could be “inflicted” without an
assault and without the direct or indirect application of force to the victim’s person
(psychiatric injury caused by persistent harassment).

(d) “Unlawfully and maliciously”

The requirement in both sections that the wounding or grievous bodily harm be unlawful
imports no more than that self-defence, defence of others, defence of property, force used for
the purpose of prevention of crime are all potential “defences”:
less of justification and excuses

If raised, the burden of negativing self-defence, defence of others, etc., is on the prosecution.

As to “maliciously”, in R v Mowatt [1968] 1 QB 421 51 Cr App R 402 CA, Diplock LJ

observed that on a charge contrary to section 18 of the (English) Offences Against the Person
Act 1861, (equivalent to s17 of the Hong Kong legislation) “maliciously” adds nothing,
because the ulterior intent required by the section is more specific than such element of
foresight of consequences as is implicit in the word “maliciously”. This will be the case
where the allegation is causing grievous bodily harm with intent to do grievous bodily harm.
Anyone who intends to do grievous bodily harm may safely be taken to foresee some
physical harm resulting from his actions. It is respectfully submitted, therefore, that, in these
two cases, judges, directing juries, can safely ignore the word “maliciously” as was suggested
in Mowatt. See on this issue HKSAR v Ying Tung CACC 150/2003 (judiciary web)

The wounding or causing of grievous bodily harm may be committed recklessly. This is
Cunningham, Mowatt recklessness not Caldwell recklessness.

In R v Philip Brady [2006] EWCA Crim 2413 (bailii) the defendant jumped from a balcony
at a night club whilst under the influence of drink and drugs. He landed on another person on
the dance floor below causing severe injuries. The court considered recklessness and
intoxication. The defendant’s appeal against his conviction for inflicting grievous bodily
harm was allowed as he had not apparently foreseen the risk of anyone being injured and
therefore he had not been reckless according to the test in R v Cunningham [1957] 2 QB
396. He may have been stupid and thoughtless but that is not the same thing as being
reckless.

(e) Wound

The word “wound” in sections 17 and 19 includes incised wounds, punctured wounds,
lacerated wounds, contused wounds and gun-shot wounds.

To constitute a wound within the Ordinance, the continuity of the skin must be broken. The
outer covering of the body (that is, the whole skin, not the mere cuticle or upper skin) must be
divided.

A division of the internal skin, e.g. within the cheek or lip, is sufficient to constitute a wound.

The rupture of blood vessels internally is not sufficient to constitute a wound. There must be
a break in the continuity of the whole skin: J J C (a Minor) v Eisenhower [1983] 3 All ER
230 DC,

(f) With intent, etc.

On an allegation of intent to cause grievous bodily harm, the jury should be directed in the
following or very similar terms: “You must feel sure that the defendant intended to cause
serious bodily harm to the victim. You can only decide what his intention was by considering
all the relevant circumstances and in particular what he did and what he said about it”: R v
Purcell 83 Cr App R 45 CA.

5. MISCELLANEOUS OFFENCES

The Offences against the Person Ordinance (Cap 212) contain various specific offences for
particular situations. S. 20 deals with attempts to strangle or suffocate. Ss 21 – 24 deal with
poisoning offences and ss 28 – 30 and 54 cover injuries caused by corrosive substances (e.g.
acid) and explosives. These offences may overlap with the wounding/GBH offences in ss 17
and 19 of the ordinance depending on the nature of the injuries that result.

section 19 miscellaneous only means intention that’s it

what is assault vs accident
4 defences
LW 5606A Criminal Law Lecture No. 11. Offences on Dangerous Drugs
(Course material and Cap 134)

1. Introduction
‘Dangerous drugs’ means any of the drugs or substances specified in Part I of the First
Schedule of Dangerous Drugs Ordinance (Cap 134). It includes but is not limited to cocaine,
codeine, heroin, hydrocodone, morphine, methamphetamine (known as ‘ice’), ketamine,
marijuana.

Offences on dangerous drugs are covered by the Dangerous Drugs Ordinance (DDO), Cap
134.

Offenses in DDO (CAP 134) include, inter alia, Trafficking, Manufacturing and Cultivation,
Possession/Consumption of Dangerous Drugs and Paraphernalia.

2. Trafficking in dangerous drug

A person convicted of trafficking in dangerous drug under DDO s4 on indictment shall be
fined up to $5,000,000 and imprisoned up to life, or on summary shall be fined up to
$500,000 and imprisoned up to 3 years. The type and weight of the drug in question would
affect the length of sentencing.

DDO s4(1) states that no person shall, on his own behalf or on behalf of any other person,
whether or not such other person is in Hong Kong 1) traffic in a dangerous drug; OR 2) offer
to traffic in a dangerous drug or in a substance he believes to be a dangerous drug; OR 3) do
or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug or in
a substance he believes to be a dangerous drug.

The mens rea: Intent

The actus reus: 1) traffic; 2) a dangerous drug

1) Trafficking is interpreted by its ordinary meaning.

2) A dangerous drug
As mentioned earlier, ‘dangerous drug’ means any of the drugs or substances specified in
Part I of the First Schedule of DDO (see Introduction).
Exclusion of Liability
There is a statutory defence in s4 DDO that the person would not be convicted under this
section if the drug in transit:
(i) is in course of transit from a country from which it may lawfully be exported to another
country into which it may lawfully be imported; and
(ii) was exported from a country which is a party to the Conventions and is accompanied by
a valid export authorization or diversion certificate, as the case may be.

According to s2 DDO:
 ‘Export’ means to take or cause to be taken out of Hong Kong or any other country, as
the case may be, by land, air or water.
 ‘Import’ means to bring or cause to be brought into Hong Kong or any other country, as
the case may be, by land, air or water.
 ‘In transit’ means imported into Hong Kong for the sole purpose of being exported from
Hong Kong to another country.

3. Trafficking in purported dangerous drug

A person convicted of trafficking in purported dangerous drug under DDO s4A on indictment
shall be fined up to $500,000 and imprisoned up to 7 years, or on summary shall be fined up
to $100,000 and imprisoned up to 1 year.

DDO s4A(1) states that no person shall, on his own behalf or on behalf of any other person,
whether or not such other person is in Hong Kong 1) traffic in any substance represented or
held out by him to be a dangerous drug but which is not in fact a dangerous drug; OR 2) offer
to traffic in any substance represented or held out by him to be a dangerous drug but which is
not in fact a dangerous drug; OR 3) do or offer to do an act preparatory to or for the purpose
of trafficking in any substance represented or held out by him to be a dangerous drug but
which is not in fact a dangerous drug.

The actus reus are: 1) traffic; 2) any substance represented or held out by him to be a
dangerous drug; but 3) which is not in fact a dangerous drug. The first actus reus can be
referred to the above.

The second and third actus reus, any substance represented or held out by him to be a
dangerous drug but which is not in fact a dangerous drug, which obviously means that the
substance must not itself be a dangerous drug or the offence charged would be ‘trafficking in
dangerous drug’ under s4 DDO.
Unlike the offence trafficking in dangerous drug (see above), there is no statutory defence for
this offence.

Additional Note: It is stated in s4A(4) DDO that ‘no prosecution for an offence under this
section shall be instituted without the consent in writing of the Secretary for Justice, but this
subsection shall not prevent the arrest, or the issue of a warrant for the arrest, of a person for
any such offence, or the remand in custody or on bail of a person charged with such an
offence.’

4 Manufacturing of a dangerous drug

4.1
A person convicted of manufacture of dangerous drug under DDO s6 on indictment shall be
fined up to $5,000,000 and imprisoned for life.

Under s6(1) DDO, no person shall: 1) manufacture a dangerous drug; OR 2) do or offer to do

an act preparatory to or for the purpose of manufacturing a dangerous drug - unless there is a
license granted by the Director.

The actus reus would be: 1) manufacture; and 2) a dangerous drug.

The word ‘manufacture’, according to s2 DDO, means any act connected with making,
adulterating, purifying, mixing, separating or otherwise treating a dangerous drug.

4.2 Cultivation of and dealing in cannabis plant and opium poppy

A person convicted of cultivation of and dealing in cannabis plant and opium poppy under
DDO s9 on indictment shall be fined up to $100,000 and imprisoned up to 15 years.

S9 DDO states that no person shall cultivate any plant of the genus cannabis or the opium
poppy, but nothing in this subsection shall prevent the Government Chemist, in his capacity
as such, from cultivating a plant of the genus cannabis so far as may be necessary for the
exercise of his employment.

The actus reus includes: 1) cultivate; 2) any plant of the genus cannabis or the opium poppy.
It is a statutory defence to allow Government Chemist to cultivate such plants during the
course of employment when necessary.
According to s2 DDO:
 ‘Cannabis’ means any plant, or any part of any plant, of the genus cannabis which
contains tetrahydro-cannabinol and the viable seeds of any plant of the genus cannabis.
 ‘Opium poppy’ means a plant of the species Papaver somniferum L or the species
Papaver setigerum D.C. and any plant from which morphine may be produced.

The word ‘cultivating’ may be interpreted by its ordinary meaning.

5. Possession of dangerous drug otherwise than trafficking, and consumption of

dangerous drug

A person convicted of possession of dangerous drug otherwise than trafficking, and

consumption of dangerous drug under DDO s8 on indictment shall be fined up to $1,000,000
and imprisoned up to 7 years, or on summary shall be fined up to $100,000 and imprisoned
up to 3 years.

According to s8(1) DDO, no person shall: 1) have in his possession; or 2) smoke, inhale,
ingest or inject – a dangerous drug.

The mens rea: intent

The actus reus: 1) have in his possession, 2) smoke, inhale, ingest or inject respectively
according to the provision.

S2 DDO states that ‘a person shall be deemed to be in possession of a dangerous drug or a

pipe, equipment or apparatus, as the case may be, if it is in his actual custody or is held by
some other person subject to his control or for him and on his behalf.’

6. Possession of Paraphernalia

According to s36(1) DDO, no person shall have in his possession any pipe, equipment or
apparatus fit and intended for the smoking, inhalation, ingestion or injection of a dangerous
drug.

The mens rea: Intent

The actus reus: 1) have in his possession; 2) any pipe, equipment or apparatus fit.

A person convicted of possession of pipes, equipment, etc. under DDO s36, and subject to
s54A DDO (See below), shall be fined up to $10,000 and imprisoned up to 3 years.

A person who intends to sell/lend the pipe, equipment or apparatus fit to another person in
order to assist him/her in smoking, inhalation, ingestion or injection of a dangerous drug will
be convicted as a secondary party.

7. Responsibility of owners, tenants, etc.

A person breaching his/her responsibility as an owner, tenant, etc. under DDO s37 on
indictment shall be fined up to $5,000,000 and imprisoned up to 15 years, or on summary
shall be fined up to $500,000 and imprisoned up to 3 years.

According to s37(1) DDO, no person shall:

(a) being the owner, tenant, occupier or person in charge of any place or premises, permit or
suffer such place or premises or any part thereof to be opened, kept or used as a divan or
for unlawful trafficking in or the unlawful manufacturing or storage of a dangerous drug;
or
(b) let or agree to let, whether as principal or agent, any place or premises with the
knowledge that such place or premises or any part thereof is to be opened, kept or used
as a divan or for unlawful trafficking in or the unlawful manufacturing or storage of a
dangerous drug.
According to s2 DDO:
 ‘Owner’, in relation to any premises, includes any person holding premises direct from
the Government, whether under lease, licence or otherwise, any mortgagee in possession
and any person receiving the rent of any premises, solely or with another and on his own
behalf or that of any person, or who would receive the same if such premises were let to a
tenant, and, where such owner as above defined cannot be found or ascertained or is
absent from Hong Kong or is under disability, also includes the agent of such owner.
 ’Place’ means any ship, aircraft, vehicle, building, structure or enclosure, whether
movable or not, and any spot on land or water.
 ‘Unlawful’ or ‘unlawfully’, in relation to trafficking in or manufacturing or storage of a
dangerous drug, means otherwise than under and in accordance with this Ordinance or a
licence issued thereunder.
Offence on divan keeping and related can be referred to s35 DDO.
In Sweet v Parsley [1970], cannabis was found in the defendant’s property which was sub-let
to a third party. While the defendant was absent from her property dangerous drugs were
found pursuant to a police search. The defendant was acquitted as this provision is not a strict
liability offence and required the element of ‘knowledge’ that the premises were being used
for the purpose of consuming drugs. Sweet overturned the earlier case of Warner v
Metropolitan Police Commissioner [1969] 2 AC 256.

8. Presumption of possession and knowledge of dangerous drug – Dominion Control

According to s47 DDO,

(1) Any person who is proved to have had in his physical possession-
(a) anything containing or supporting a dangerous drug;
(b) the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or
other similar container containing a dangerous drug,
shall, until the contrary is proved, be presumed to have had such drug in his possession.
(2) Any person who is proved or presumed to have had a dangerous drug in his possession
shall, until the contrary is proved, be presumed to have known the nature of such drug.
(3) The presumptions provided for in this section shall not be rebutted by proof that the
defendant never had physical possession of the dangerous drug.

This section allows the prosecutor to make certain presumptions of possession and
knowledge of dangerous drug of the charged, unless rebutted. This is to disallow the charged
to be acquitted simply by claiming that the drug was not his/hers, which is to discharge the
burden of proof on the prosecutor beyond reasonable doubt.

In HKSAR v Hung Chan Wa and Atsushi Asano, the first defendant was charged under s8
DDO (See above) after the police found an amount of heroin hydrochloride in a plastic
shoulder bag which he was carrying. The defendant claimed that he was given the bag by a
friend which the defendant thought merely contained a video tape and no drugs. Since the
defendant’s testimony was not believed, he failed to rebut the presumption of possessing and
knowing the nature of the drugs. His appeal was allowed and the High Court found that
s47DDO (2) cannot shift the burden of proof to the Defendant (i.e. require the Defendant to
prove - by a preponderance - that he did not know he carried dangerous drugs) but only
creates an evidential burden. Thus, the presumption can be negated by creating a reasonable
doubt that the defendant knew of the dangerous drugs. The evidential burden cannot be
satisfied by a blanket denial alone – it must be accompanied by some evidence.
Hughes v Guild [1990] JC 359 - Accused found to be in possession of drugs found in a
common flat in an area both tenants had access to.

R v Smith [1966] Crim Cr 588 - Appeal allowed based on evidence that the accused shared a
residence with several other people and drugs found in room that accused had access to but
rarely entered.

R v Peaston 69 Cr App. R 203 - Drugs delivered to the accused’ residence and obtained by
police before he was aware of the delivery, accused found to be in possession of dangerous
drugs.

R v Martindale [1986] 84 Cr App. R 31 – Forgotten possession of dangerous drugs does not

rebut the presumption. Accused had forgotten about the drugs found in his possession but no
defense.

9. Drug Sentencing Guidelines

Sentencing guidelines set out as judicial decrees and determined according to the type of drug
and the weight trafficked. Guidelines narrow range for the judge to consider in order to hand
down reasonably consistent sentences and to take all sentencing factors into consideration
(aggravation and mitigation).

In the recent landmark judgment of HKSAR v Tam Yi Chun [2014] HKCA 279; CACC
524/2011, the offender was convicted after trial for trafficking 1,916g of ice. The Court of
Appeal revised the sentencing guidelines for trafficking ice and set stricter tariffs at [34]:

(1) Up to 10 grammes – 3 to 7 years imprisonment;

(2) Between 10 and 70 grammes – 7 to 11 years imprisonment;
(3) Between 70 and 300 grammes – 11 to 15 years imprisonment;
(4) Between 300 and 600 grammes – 15 to 20 years imprisonment; and
(5) For amounts of 600 grammes and over, the same tariffs as are prescribed in
Abdallah for those quantities of heroin.
[Note: tariffs prescribed in Abdallah
(1) 600 to 1,200 grammes - 20 to 23 years’ imprisonment;
(2) 1,200 to 4,000 grammes - 23 to 26 years’ imprisonment;
(3) 4,000 to 15,000 grammes - 26 to 30 years’ imprisonment;
(4) Over 15,000 grammes - At the sentencer’s discretion]
In its judgment, the Court recognised that supply and demand for ice has dramatically
increased since the earlier guideline judgment of Attorney General v Ching Kwok-hung
[2006] FACC No. 1 of 2006; user groups have expanded to children as young as 10 years old;
and a body of research has emerged indicating that ice may indeed be even more addictive
and deleterious to human health than heroin. The Court therefore held that there is now no
rationale in sentencing for setting a lower starting point for ice than for heroin.

10. Drug Rehabilitation: ‘Court to consider report of the Commissioner of

Correctional Services in the case of certain drug offences’

According to s54A DDO,

(1) Subject to subsection (1A), no sentence, other than a non-custodial sentence, shall be
imposed on a person for an offence against section 8 or 36 unless the court has first
considered a report of the Commissioner of Correctional Services on the suitability of
such person for cure and rehabilitation and on the availability of places at addiction
treatment centres (as defined in the Drug Addiction Treatment Centres Ordinance (Cap
244)).
(1A) Subsection (1) shall not apply where a person is convicted of an offence against section
8 (Possession of dangerous drug otherwise than trafficking, and consumption of
dangerous drug) or 36 (Possession of pipes, equipment, etc.) or of offences against
both those sections and that person-
(a) is convicted in the same proceedings of any other offence and is sentenced for that other
offence to imprisonment for more than 9 months; or
(b) is at the time of conviction serving a term of imprisonment of more than 9 months,
but, in such a case, the court may if it thinks fit consider a report specified in subsection
(1) before sentencing that person for the offence against section 8 or 36.

Basically, the court can request the convicted to be detained in addiction treatment centres for
cure and rehabilitation if the convicted committed an offence under s8 and/or s36 DDO and
be imprisoned under 9 months.
LW 5606A Criminal Law Lecture No. 12. Non-Fatal offences Against the Person. No. 3.
(Offences against the Police and Other Assaults)

(Chapter 11 of Jackson)

1. ASSAULTS WITH INTENT TO COMMIT AN ARRESTABLE OFFENCE

Offences against the Person Ordinance (Cap. 212), s 36

Assault with intent to commit offence, etc.

36.—Any person who-
(a) assaults any person with intent to commit an arrestable offence; or
(b) assaults, resists, or wilfully obstructs any police officer in the due execution of his
duty or any person acting in aid of such officer; or
(c) assaults any person with intent to resist or prevent the lawful apprehension or
detainer of himself or of any other person for any offence, shall be guilty of an offence
triable either summarily or upon indictment, and shall be liable to imprisonment for 2
years. (civilian)

1.1 Ingredients of offence

There must be an assault together with the ulterior intent to commit an arrestable offence; to
assault, resist or wilfully obstruct a police officer acting in the due execution of duty or to
resist or prevent the lawful apprehension or detainer of the defendant or another person for
any offence.

It must be proved that the person assaulted had the right to apprehend or detain the defendant
for any offence.

The words “or detainer” add nothing to “lawful apprehension”. There is no power of
detention, in the sense of a total restriction upon a citizen’s freedom of movement, short of an
arrest for an offence.

Section 54 of the Police Force Ordinance (Cap. 232) confers a power on police officers in
certain circumstances to stop and detain persons for a reasonable period for the purposes of
production of proof of identity, enquiring whether or not the person is suspected of having
committed any offence and searching them for stolen goods. A similar power to stop a person
and to require production of proof of identity is found in section 17C of the Immigration
Ordinance (Cap. 115). An arrest may follow under either section.
However section 36(c) of the Offences Against The Person Ordinance refers to “lawful
apprehension and detainer”. Can it be said that when a police officer exercises the powers
under section 54 of the Police Force Ordinance or section 17C of the Immigration Ordinance
the person stopped is being detained for an offence. However a person who does not co-
operate with, or is aggressive towards, a police officer who is exercising the power under
either Ordinance may well commit an offence under section 36(b) of the Offences Against
the Person Ordinance.

1.2. Powers of arrest

The power of a citizen to make an arrest are set out in sections 101 and 101A of the Criminal
Procedure Ordinance (Cap. 221).

A citizen may arrest without warrant “any person whom he may reasonably believe may be
guilty of an arrestable offence”.

Section 3 of the Interpretation and General Clauses Ordinance (Cap. 1) defines “arrestable
offence” as offence where the sentence is fixed by law, or the minimum sentence is for
imprisonment exceeding 12 months.

The common law power for a citizen to arrest for a breach of the peace survives. For the
power of arrest to be exercised, the breach must either occur in the presence of the citizen
effecting the arrest, or the person effecting arrest must believe a breach of the peace is
imminent or a breach of the peace has been committed and there is a reasonable belief of a
renewal, see R v Howell [1981] 3 WLR 501 CA. Citizen’s arrests are, in practice, now a
rarity.

Police officers possess all the citizens’ powers of arrest. In addition they have wide statutory
powers of arrest under section 50 of the Police Force Ordinance (Cap. 232). Section 50(2)
empowers police officers to use all means necessary to effect the arrest where there is
forcible resistance or an attempt to evade arrest. Section 101A of the Criminal Procedure
Ordinance empowers a citizen making an arrest to use such force as is reasonable in the
circumstances. Reasonable force may be used by citizens in making an arrest.
necessity = need to be proportionate(objective standard)

A good example of assault with intent to resist lawful apprehension is HKSAR v Ng Wai-
Hing Criminal Appeal No. 621 of 2002 (Judiciary web). The occupant of a room in a hotel
awoke to find D searching a cupboard in his room. He chased and caught D who punched
him in the face before again running away. The occupant continued the chase and again
caught and eventually subdued D. D was convicted of burglary and of assault with intent to
resist lawful apprehension. The sentences for the two offences in such situations should be
consecutive.

1.3 Use of force in making arrest, etc.

S101(A) Offences against the Person Ordinance (Cap 212) states:

(1) A person may use such force as is reasonable in the circumstances in the prevention
of crime or in effecting or assisting in the lawful arrest of offenders or suspected
offenders or of persons unlawfully at large.
(2) Subsection (1) shall replace the rules of the common law on the question when force
used for a purpose mentioned in the subsection is justified by that purpose.

On a charge under section 36 it must be proved that the defendant assaulted someone
intending to resist or prevent what was, or would have been, a lawful arrest for an offence. It
clearly does not have to be proved that D was aware of the circumstances which made the
arrest lawful, although, in practice, he often will be.

What is the position if the person to be arrested genuinely believes in the existence of
circumstances that would make the arrest unlawful or that the persons seeking to make the
arrest were not in fact police officers?

General principle suggests that where a defendant has made a mistake of fact his criminality
should be judged on the basis of his mistaken view of the facts: R v Kimber, 77 Cr App R
225 CA; R v Williams (G), 78 Cr App R 276 CA and R v Beckford [1988] AC 130 PC.
The reasonableness or unreasonableness of the defendant’s belief is material only to the
question of whether the belief was held by the defendant at all.

2. OFFENCES IN RELATION TO POLICE OFFICERS

Assaulting a police officer in the execution of his duty, or misleading an officer by false
information, is covered by s. 63 Police Force Ordinance, (Cap. 232) (PFO).

Any person who assaults or resists any police officer acting in the execution of his duty,
or aids or incites any person so to assault or resists, or refuses to assist any such
 officer in the execution of his duty when called upon to do so, or who, by the giving of
false information with intent to defeat or delay the ends of justice, wilfully misleads or
attempts to mislead any such officer, shall be liable on summary conviction to a fine of
$5,000 and to imprisonment for 6 months.

There is a further offence under s. 36 Offences Against the Person Ordinance (Cap. 212)

Any person who,

(a) assaults any person with intent to commit an arrestable offence; or
(b) assaults, resists, or willfully obstructs any police officer in the due execution of his
duty or any person acting in aid of such officer; or
(c) assaults any person with intent to resist or prevent the lawful apprehension or
detainer of himself or of any other person for any offence, shall be guilty of an offence
triable either summarily or upon indictment, and shall be liable to imprisonment for 2
years.

There is an overlap between the two sections and note the different penalties. Section 63
PFO is used for less serious incidents and s.36 OAPO for more serious cases.

Note that an offence of wilful obstructing can only be brought under s 36 OAPO.

It is not unusual to have a combination of charges e.g. theft, assaulting a police officer, and
resisting a police officer. This would cover situations where an officer is attempting to arrest
a suspected thief who punches the police officer, then runs away but is chased and caught by
the officer. Or, for example the case HKSAR v Hung Mei Kwan Magistracy Appeal No.
1257 of 2002 (Judiciary web) where D failed to produce proof of identity on demand
(obstructing PO), was arrested by another officer and when being taken to the police vehicle
kicked the first officer (assault). Both charges were under s. 36(b) OAPO.

2.1 Ingredients

There must be an assault on a police officer who is acting in the course of his duty.

The term “police officer” means there is no distinction by rank. A member of the Auxiliary
Police Force, when on duty, is a police officer for the purposes of s 63: s. 17 of the Hong
Kong Auxiliary Police Force Ordinance (Cap. 233).

The powers, duties and responsibilities of police officers are in general governed by the
Police Force Ordinance (Cap. 232). Their powers in relation to the stopping and searching of
persons and vehicles, the seizure of articles, entering premises with and without search
warrants, and the arrest and detention of persons are largely determined by that Ordinance.
Where any provision of the Ordinance confers a power on a police officer and does not
provide that the power may only be exercised with the consent of some person, other than a
police officer, the officer may use reasonable force, if necessary, in the exercise of the power:

Apart from the general provisions of the Police Force Ordinance, many Ordinances confer
specific powers or duties on police officers. Police officers who act in accordance with the
terms of an Ordinance will clearly be acting in the execution of their duty. The legislature, in
an effort to keep pace and to deal with the complexity of modern society, has often made
enactments regulating many different aspects of society. Road traffic is an obvious example.

It is part of the obligations and duties of a police officer to take all steps which appear to the
officer to be necessary for keeping the peace, for preventing crime, or for protecting property
from criminal injury. The duties of the police force set out in s.10 PFO are extensive but not
exhaustive. The powers and obligations of the police are at least taking lawful measures for
preserving the public peace, preventing and detecting crimes and offences, preventing injury
to life and property and apprehending persons whom it is lawful to apprehend and for whose
apprehension there are sufficient grounds, see e.g. Rice v Connolly [1966] 2 QB 414, per
Lord Parker CJ.

Police officers have a duty to control traffic upon public thoroughfares and to remove
obstructions therefrom. In Johnson v Phillips [1976] 1 WLR 65 it was held that a constable
has the right to disobey a traffic regulation or direct another to do so if acting in the execution
of his duty to protect life and property.

A police officer, like any other member of the public, has implied leave and licence from a
house-holder to enter land and approach the door of a house for the purpose of making
inquiries; if requested to leave by the occupier, the lapse of a reasonable time must be
deemed necessary to enable the police officer to leave: Robson v Hallett [1967] 2 QB 939
51 Cr App R 307 DC. Where a police officer is off private premises, it would be within the
officer’s duty to enter such premises to prevent a breach of the peace.

It is not every interference with a citizen’s liberty that will amount to a course of conduct
sufficient to take the officer outside the execution of duty: Donnelly v Jackman 54 Cr App
R 229 DC (touching a person on the shoulder to attract attention); but c.f. Bentley v
Brudzinski 75 Cr App R 217 DC (unlawfully preventing citizen from walking away after
the officer’s questions had been answered was held to be more than just a “trivial interference
with a citizen’s liberty” and Ludlow v Burgess 75 Cr App R 227 DC (taking hold of a
person’s arm but without proceeding to arrest). The cases which concern the distinction
between unlawful restraint and a lawfully acceptable degree of physical contact between a
police officer and another were considered in Collins v Wilcock 79 Cr App R 229 DC. A
police officer is not acting in the execution of duty by attempting to prevent a breach of the
peace by trying to restrain a person who is using force to prevent an unlawful search by
another officer: McBean v Parker [1983] Crim LR 399 DC. Nor if the officer restrains
someone in the mistaken belief that that person has been lawfully arrested by another officer:
Kerr v DPP [1995] Crim LR 394 DC.

A police officer is entitled to use force to restrain a person from leaving a police station
provided it has been made clear to that person that he is under arrest.

An arrested person who leaves a police station without permission commits the offence of
escape from legal custody, contrary to section 17 of the Prisons Ordinance (Cap. 234). Where
an issue arises upon this question, it is a question of fact for the tribunal of fact to decide.

2.2. Mens rea

Knowledge that the person assaulted was a police officer is not necessary to sustain a charge
contrary to section 63 of the Police Force Ordinance.

Nor is it necessary to prove that the accused knew that the officer was acting in the execution
of his duty; the offence is not assaulting an officer knowing him to be in the execution of his
duty, but assaulting him being in the execution of his duty.

If the defendant had a genuine belief either that the victim was not a police officer or in the
existence of circumstances which would mean the officer was not acting in the course of
duty, the general principle relating to mens rea and mistake of fact should apply and the
defendant’s liability should be judged on the basis of that belief: R v Kimber 77 Cr App R
225 CA; R v Williams (G), 78 Cr App R 276 CA; R v Beckford [1988] AC 130 PC.

2.3. Resisting

This is given a wide definition and means essentially an act in opposition to the (lawful)
exercise of power by a police officer. If a suspect runs away from an officer who is trying to
make an arrest then that is resisting.
3. MISLEADING THE POLICE BY GIVING FALSE INFORMATION

Giving false information to a police officer is an offence within section 63 of the Police Force
Ordinance. The false information must be given knowing it is false and with intent to defeat
or delay the ends of justice.

The offence is sometimes referred to as wasting police time or wasteful employment of the
police.

4. OBSTRUCTING A POLICE OFFICER

See s. 36 OAPO above.

Wilful obstructing is an act in opposition to the lawful execution of police powers which
makes it more difficult than it otherwise would or should have been for the officer to execute
his or her duty.

Whilst refusing to answer a PO’s questions is not (generally) an offence telling lies to the
officer could be an obstruction; it wastes time and makes the performance of duty more
difficult than it otherwise would have been.

The obstruction need not be hostile or aimed at the police. In Lewis v Cox [1984] 3 All ER
672 X had been arrested and put in a police vehicle. D persisted in opening the door of the
vehicle and asked to be told where X would be taken. He also stood in front of the vehicle
and stopped it being driven away. In fact his conduct stopped the police taking the arrested
person away. D’s actions were deliberate and he therefore made it, as he must have
appreciated and intended, more difficult for the police to execute their duty.

Two cases indicate the sort of conduct that can lead to a charge of obstructing a police officer
in the execution of duty, see HKSAR v Tam Lap Fai Magistracy Appeal No. 835 of 2003
and the subsequent appeal HKSAR v Tam Lap Fai [2005] HKCFA 15/2004 (Judiciary
Web), and HKSAR v Ibarra Oliva Fernandez Magistracy Appeal No 119 of 2004
(Judiciary Web).