Criminal Law

Basic elements of a crime charge

Capacity
 Juvenile Offenders Ordinance s3: children under the age of 10 cannot be guilty of an
offence
 Age 10-14: rebuttable presumption of doli incapax (incapacity to commit a crime) under
common law. In order to get a conviction, it must be proved that D knew his act was
“seriously wrong” in addition to AR and MR elements, and not merely
“naughty/mischievous” Gorrie
 Above 14: treated as normal adult in conviction/criminal liability

Actus reus
 Actus reus: physical/behavioral elements of a crime
 No conviction without AR
In criminal law, the burden of proof is presumed to be on the prosecution, and P
must prove that D satisfy all the element beyond reasonable doubt before the jury can
convict him. Woolmington v DPP: there is a misdirection to the jury that D must satisfy
them that the killing was accidental; the true rule is that the jury must acquit even though
they are not satisfied that D’s story is true, if they think it might reasonably be true. They
should convict only if satisfied beyond reasonable doubt that D’s account is not true.
Exception: the defense of insanity—D must prove beyond on the balance of
probabilities; for other common law defenses, the only burden on D is to raise enough
evidence of the existence of the constituents of the defense, whereupon it is for the
Crown to satisfy the jury that at least one of those constituents did not exist.

Case facts reasoning conviction

Deller D induced V to purchase his car by D merely denies the Court of
representing (inter alia) that D had existence of an AR Appeal
ownership and was entitled to sell it. In element in the quashed D’s
fact, D had previously executed a definition of a crime. conviction
document to mortgage the car to a If D successfully
finance company. D knew he was telling raised that plea, he
a lie. However the mortgage document cannot be convicted
was void in law, so D had ownership at whatever his state of
 the time of the selling mind.
Dadso D was a constable employed to watch a D admits that all the D's appeal
n copse from which wood had been elements in the was
stolen. V was found steeling wood from definition of the dismissed
D, who called V to stop but V ignored crime have been
and tried to run away. D had no means established and goes
but to shot V and wounded him in the to assert other
leg. D was convicted of shooting at V factors (MR,
with intent to cause GBH. V was a external facts…) for
felony repeatedly convicted of stealing defense.
wood, but D didn’t know when shooting D was not justified
him. Under the current law it was in firing at V for the
lawful to wound an escaping felony if fact that V was
this was the only way to arrest him. committing a felony
was unknown to D

 Classification of crimes according to AR

- conduct crimes (e.g. rape): acts or omissions or the accused are (with any required
mental element) sufficient for constitute the offence.
- result crimes (e.g. murder, criminal damage): must prove that D’s conduct caused a
prescribed result.

 How to determine the AR of a specific crime:

- For common law offences, look at cases
- For statutory offences, look in the words of the statute and relevant caselaw

 Basic elements of AR:

 Voluntariness: a general requirement
 Involuntary/automatism: “an act which is done by the muscles without any
control by the mind” Bratty

Voluntary act = no automatism

 Test: total destruction of voluntary control A-G’s reference (No 2 of 1992)

- Insufficient if the control is merely impaired/reduced/partial
Chan Tak Kwong

D experienced a short lived acute confusional episode as a result of drug

intoxication, according to medical report. This was not a total loss of control. The
defense of automatism cannot be raised on a proper evidential foundation, therefore
cannot be left to the jury to decide.

- Comatose, however, is not necessary

R v Coley; R v McGhee
 - If a person is forced to commit a crime (duress), it is voluntary, but there
are other defenses applicable
- Exception: where the reason for lack of consciousness is D’s prior fault,
namely voluntary self-induced intoxication.
→ Self-induced intoxication is no excuse for any crimes of “basic
intent”—crimes that do not require proof of men’s rea of intention. [strict
liability or negligence, even though unintentionally misdirected, such as
pressing the accelerator instead of the brake.]
Fault: doing/omitting to do sth that could reasonably be foreseen to bring
about such a state. Sometimes the fault itself is sufficient to found liability
for the offence charged.
 Conduct:
 Can be classified as act or omission (passive act)
 General points: the answer could vary according to different crimes; the
legislature can make any omission a basis of liability for a particular crime if it
wishes to do so (so long as it is consistent with BL)
e.g. failure to file a tax return--Inland Revenue Ordinance s.80(1)
 Many “result crimes” (i.e. offences having consequence and causation as
necessary components) do not explicitly specify whether they can be
committed by omissions—liability for omissions?
→ General principle: omission not unlawful unless it amounts to a breach of
duty—it’s important to ask what are the legal duties we owe to each other
Airedale NHS Trust v Bland

Bland is in a state of PVS, but still alive in legal state and had been put on the life
sustaining machine. Medical evidence suggests he cannot be cured and will remain in the
PVS state. Hospital wants to determine whether switching off the life support machine
constitutes murder (since active euthanasia is unlawful, is the alleged conduct distinguishable
from active euthanasia?).

Held: Switching the machine off is an omission rather than an act. The omission is not a
breach of duty by the doctor, because he is not obligated to continue in a hopeless case;
discontinuation of a life support is, for present purposes, no different from not initiating life
support in the first place. the doctor is simply allowing his patient to die in the sense that he
is desisting from taking a step which might, in certain circumstances, prevent his patient from
dying as a result of his pre-existing condition.

The duty of a doctor is to act in the best interest of his patients. The question of the
current case is not whether the doctor should take a course which will kill his patient, or even
take a course which has the effect of accelerating his death. The question is whether the
doctor should or should not continue to provide his patient with medical treatment or care
which, if continued, will prolong his patient’s life… this is because the question is not whether
it is the best interests of the patient that he should die, but whether it is the best interests of
the patient that his life should be prolonged by the continuance of this form of the medical
treatment or care.
 Circumstances: situation/background, varies a lot amongst crimes
e.g. did the victim consent when I touched him/her? Is the stolen property belonging
to another?

 Causation: relationship between different (physical) things

 the meaning of causation is heavily context-specific
 Not all crimes require causation—distinguish between conduct crimes and
result crimes
 General principles of causation
- causation must be a legal causation
 Factual causation:

(a) “but-for” cause (i.e. a necessary cause/ “sine qua non”)

White: D intended to kill his mom by administering poison in her drink.

However his mother died as a result of a fatal heart attack, not poisoning.

If D invites V to dinner and V is run over and killed on the way, V would not
have died but for the invitation, but in law D had not caused V’s death.

→ sine qua non is only a starting point.

(b) but need not to be the “sole” cause/ “main”/ “primary” cause

Hubbersty

D inflicted blunt force injuries on V. Although medical experts testified that in

this case V would not (necessarily) have died from the blunt force injuries on their
own, those injuries still are causes of death. The only test provided by Cheshire is
whether the acts for which D is responsible significantly contributed to death.

 Legal causation (in addition to factual causation):

(a) must be an operating cause

The culpable element in his conduct must have made a relevant contribution to
the result

Dalloway: if D had reins and by using the reins could have saved the child, he
was guilty of manslaughter; if D could not have saved the child by the use of
the reins, then D should be acquitted

→ the causation analysis must focus on the relevant act—which act is

prohibited by statute/is alleged to be the cause of the death?

R v L: D’s wrongdoing must have not simply satisfied causation in the “but
for” sense, but also in bringing it about
 (b) Must be more than de minimis

if D’s negligence mainly or substantially caused the accident, it was irrelevant

that it might have been avoided if other persons had not been negligent (Benge)

in some cases, the judge can rule that D’s conduct is too remote from later
events to have been the causation of it.

(c) A very important consideration is whether there was a Novus Actus

Interveniens (NAI):

whether there was an event occurring after D’s conduct and before the consequence,
which is a more immediate cause of the relevant consequence, that broke the chain of
causation.
Another way of putting the same point: whether the intervening event is one such
that the defendant’s conduct can be said to fade to the “background”, as “merely the
setting in which another cause operates”, such that the intervening event should be
regarded as the sole cause to the exclusion of D’s conduct

If, despite the intervening events, D’s conduct remains a “substantial and operative
cause” of the result, D will remain responsible. Subject to this and some exceptional
cases, the principles are as follows:

(1) D will remain liable if his subsequent act is part of the same transaction
perpetrated by D. e.g. D stabs V and shoots him

(2) D will not be liable if a natural event which is extraordinary or not reasonably
foreseeable, supervenes and renders D’s contribution merely part of the background.

 Perkin’s two examples:

- D struck V, leaving him unconscious but not seriously hurt on the floor of a
building and V died due to the fall of the building by a sudden earthquake → “Act
of God”, the blow blow was the occasion of the man being there, but the blow was
not the cause of the earthquake, nor was the deceased left in a position of obvious
danger

- D struck V on the seashore and left V unconscious before tide rise, drowning V.
V’s being drowned is a natural consequence of D’s action (i.e. a consequence which
might be expected to occur in the normal course of events). D may also be liable if
he had personally seen the risk of high tide (because of special knowledge) even
though it is not reasonably foreseeable.

(3) in relation to third party’s interventions, D will not be liable if a third party’s
 intervening act is either1:

(a) one of a free, deliberate and informed nature (whether reasonably

foreseeable or not) ← existence of free will

Latif: British customs officers in Pakistan intercepted heroin which D intended to

import into England. The officers brought it into England where D took delivery. D was
not guilty of being concerned in the fraudulent evasion of the prohibition on importation
because this had been effected by the “free deliberate and informed act” of the officers.
(Contrasted with non-intentional intervening acts, for example a failure by an employee
to establish a safe system of work may remain a legal cause of death although the fatal
accident would not have occurred but for the inadvertent, probable negligent, act of an
employee operating the system.)

Difficulty in application: two categories of cases

- Empress Car

D Ltd was held by the House of Lords to have caused the pollution of a river by
bringing oil onto a site and failed to take precautions against the ever-present and
foreseeable possibility that someone would release the oil into the river.

Would be broken by the person who released the oil if the act was an extraordinary
one, but not merely being a free, deliberate and informed act? Confuse principles dealing
with natural interventions and those with third arty human interventions?

The House of Lords confirmed in Kennedy (No 2) that the extreme principles set
down in Empress is applicable in relation to offences of pollution and is not of general
application throughout the criminal law.

- Drug administration cases

Kennedy (No 2): D prepared a syringe of heroin and handed it to V for immediate
injection. V injected himself and died shortly thereafter as a result of injection.

D who supplies drugs for V to self-inject can never be guilty of unlawful act
manslaughter if V is a fully informed adult making a voluntary decision to self-inject.
Rogers overruled, D is not liable for providing the drugs and holding the tourniquet for V
to freely and voluntarily inject himself a lethal dose of heroin. Finlay overruled, where
Empress should not be applied in deciding whether V’s act broke the chain of causation.

However, in common law, a defendant may be convicted on the basis that the fatal
dose was jointly administered, therefore D is not automatically entitled to be acquitted if
the deceased rather than the defendant physically operated the plunger? Whether the
necessary proximity existed between the actions of D and V is for the jury to determine.
Liability for manslaughter will exist where D has provided the drugs to V whose act of

1
Other possibilities: (a) innocent agent: where D knowingly employs an innocent agent—for
example, a person under the age of criminal responsibility, or insane, or merely without men’s
rea—to commit an offence, D in law causes the result. (b) involuntariness: a truly involuntary
act does not break the chain of causation
self-administration was not free and voluntary and probably where D was a child.

(b) if not a free, deliberate informed act, one which was not reasonably
foreseeable Girdler

(c) human intervention in the purpose of self-preservation or in the execution of

legal duty does not break the chain of legal causation.

Pagett: D liable for the death of a girl he used as a shield against shot from
police officers during a lawful arrest

(4) D will not be liable if a medical professional intervenes to treat injuries inflicted
by D and the treatment is so independent of D’s conduct and so potent as to render D’s
contribution part of the history and not a substantial and operating cause of death. the
jury must remain focused whether D remains liable, not whether the medical
professional’s conduct ought to render him criminally liable for his part. Even where
innocent treatment leads to death or more serious injury, it will only break the chain or
causation if it is (a) unforeseeably bad (b) the sole significant cause of the death (or more
serious injury) with which D is charged.

General principle: Conduct of medical professionals are generally insufficient to

break the chain of causation.

Jordan: D stabbed V who was admitted into hospital and died 8 years later. The stab
wound was mainly healed at the time of the death. medical experts’ view was that V’s
death was caused by the “palpably wrong” treatment. D’s conviction was quashed. → “A
very particular case depending upon its exact facts”

Smith: D stabbed V and one of V’s comrades tripped and dropped him twice when
he was rushing V to medical reception station. At the reception station the medical
officer gave V treatment that was “thoroughly bad and might well have affected his
chances of recovery”. However, D was still convicted of murder. “If at the time of death
the original wound is still an operating cause and a substantial cause, then the death can
properly be said to be the result of the wound, albeit some other cause of death was also
operating. Only if it can be said that the original wound is merely the setting (or part of
the history) in which another cause operates can it be said that the death does not result
from the wound.”

Cheshire: the bullet wounds which D inflicted on V had ceased to be a threat to life
and there was evidence that V’s death was caused by the tracheotomy performed and
negligently treated by doctors so that he died from asphyxiation. “the rare
complication…was a direct consequence of the appellant’s acts, which remained a
significant cause of his death.” “the jury should not regard it as excluding the
responsibility of the accused unless the negligent treatment was so independent of his
acts, and in itself so potent in causing death that they regard the contribution made by his
acts as insignificant.”

Suppose that the tracheotomy would have caused death even if the wound had been
completely healed, it is unlikely that the court would regard D as not having caused
death. The wound would not have been an operating and substantial cause but the
ultimate question is whether D’s act was a cause and it is clear that it might be, even if
the wound was not.

Summary—propositions of the current law:

(a) medical evidence is admissible to show that the medical treatment of an injury
was the cause of death and that the injury itself was not. This is no whether or not the
injury is life-threatening.

(b) if an injury inflicted by D was an operating and substantial cause of death, D is

guilty of homicide, however badly the injury was treated.

(c) if an injury inflicted by D was not an operating and substantial cause of death,
the test we must apply is the Cheshire independent/potency test. A better test, it is
submitted, would be whether the treatment, or the manner of administering it, was so
extraordinary as to be unforeseeable

(5) in relation to victims:

(a) D will be liable if the victim has a pre-existing condition rendering him
unusually vulnerable to physical injury

Blaue: D stabbed V, V refused blood transfusion on religious grounds and died from
the bleeding. → In criminal law D must take his victim as he finds them. Mind and body.
The cause of death is still the stabbing wound (dictum).

Holland: whether V’s conduct was reasonable or not was irrelevant. In the end, the
wound inflicted by the prisoner was the real cause of death.

Wall: neglect or maltreatment by the injured person of himself does not exempt D
from liability for his ultimate death. (neglect or maltreatment regarded as de minimis)

(b) D will not be liable if the victim’s subsequent conduct in response to D’s act
is not within a range of responses that can be regarded as reasonable and foreseeable in
the circumstances.

If the reaction was “so daft as to make it V’s own voluntary act, the chain of
causation is broken (R v Roberts)

If V inflicts greater harm in response to that inflicted by D already and which

remains a substantial and operative cause?

→ if D’s act remains a substantial and operative cause, D remains liable even if the
victim is a contributory cause of the final result. E.g. V received a mortal gunshot from D
and cut his own throat—the original gunshot was still a operating cause.

→ It will be different if V blown his brains out. Alternative reason for conviction:
the first act provided a reason for the second. (Dear: D’s conviction of murder was
 upheld even though V may have intentionally caused his own death by aggravating the
wounds inflicted by D.) If V would not have killed himself but for those injuries, D
caused his death. if V had so acted only for some reason unconnected with D’s attack on
him—for example, shame at his own disgraceful conduct.

(6) intended consequences:

(a) white: the consequence, even intended, if its occurrence has nothing to do
with D’s wrongdoing, the D will not be hold liable (similar to Jordan)

(b) where the death occurs in the manner intended by D, he will be guilty even
if the course of events was not what he expected.

Men’s rea
 Men’s rea: mental fault elements of a crime (usually only required in serious crimes)
 Two basic questions:
 What are the MR requirements for a particular offence (see presumption of MR and
part B)
 What do we mean by a particular MR term (the same term may carry [slightly?]
different meaning depending on the offence)
Intention, recklessness, willfulness, malice, negligence, knowledge

→ three more ideas related to MR, namely mistake, coincidence, and transferred
malice

 Intention:
 Direct/purposive intent: If the relevant consequence X is my purpose in acting, I
intend to cause X.
 Oblique intent: aware of the consequence but not my purpose; a virtually certain
consequence. This does not suffice as intention. not automatically applied
 Nedrick; Woollin

the jury should be directed that they are not entitled to [find] the necessary intention [i.e.
intention to cause death or serious bodily harm], unless they feel sure that death or serious
bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the
defendant's actions and that the defendant appreciated that such was the case. (aware of
the consequence but not my purpose.)

 The judgement of intention is not based on motive

However, there are exception cases: Steane; Ahlers

The courts appear to examine the motives or justifications of the defendant while
purporting to be determining his intention
 → abandon the rules to achieve justice

 Recklessness (more in presumption of men’s rea):

 Several interpretations of recklessness:
 “Cunningham recklessness”/ “G recklessness”:

A person acts recklessly…with respect to

(i) a circumstance when he is aware of a risk that it exists or will exist;

(ii) a result when he is aware of a risk that it will occur; subjective foresight

and it is, in the circumstances known to him, unreasonable to take the risk.”

→ note that (a) subjective foresight, or awareness, of risk by D is necessary for G

recklessness (i.e. in criminal damage, reckless must be subjective) (b) The subjective
foresight is objectively assessed

R v G overruled Caldwell for criminal damage. What about offences other than criminal
damage?

General application see A-G’s Reference (No 3 of 2003)

In HK, see Sin Kam Wah: subjective intention also applicable to rape cases

How is “Satnam recklessness” related to G recklessness? See Li Kim Ching; Kwan Chi
Wing; Kwan Chi Wing

 “Caldwell recklessness”(case overruled):

A person is reckless if:

(1) he does an act which in fact creates an obvious risk and

(2) when he does the act he either

[a] has not given any thought to the possibility of there being any such risk or

[b] has recognised that there was some risk involved and has nonetheless gone on to do
it.’

→ in virtue of [a], subjective foresight is not necessary for Cardwell reckless

 Willfulness: requires either intention or recklessness; followed Sheppard

→ how is recklessness defined in Sheppard?
 Malice: Cunningham--Either intention or subjective recklessness

 Negligence:
 definition: failure to live up to the standard of a reasonable person
 objective basis of liability: does not require the defendant to have subjective
foresight → accordingly, for most serious crimes, negligence is generally not a
sufficient basis for liability
there can be multiple objective tests, depending on how much personal
characteristics of the agent (age, capacity, experience…) do we take into account in
construing the reasonable person.
 When dealing with statutory interpretation of men’s rea, only interpret subjective
men’s rea terms (intention or recklessness, never read into negligence)

 Knowledge:
 Two elements of actual knowledge: (from Sail)
 Holds a belief that the circumstances obtain; and
 The belief is true

In England, wilful blindness (i.e. “the defendant had deliberately shut his eyes to the
obvious or refrained from inquiry because he suspected the truth but did not want to have
his suspicion confirmed”) is sometimes regarded as sufficient for knowledge. [only
suspicion is not enough]

What is clear is that mere awareness of a risk that the circumstances may obtain
(suspicion/recklessness) or constructive knowledge (you ought to have known), which
are different mental states from wilful blindness (See, e.g. Williams), are insufficient

 Mistake:
 relevant to criminal liability if and only if
 it negates an MR element of the offence

E.g. One of MR elements of murder is intent to cause death or GBH to a person. I

mistakenly believed I was shooting a tree. If my mistake was genuine (i.e. honest), then I
cannot at the same time intended to cause death or GBH to a person through my act. This is
so even if the mistake was unreasonable, therefore I cannot be convicted murder.

 it forms the basis of a defense, like a common law halfway house defense, self-
defense, or duress

E.g. I mistakenly believed that you were telling me “I will kill you if you do not rob the
bank”, while you were actually speaking another language. I may raise duress on the basis of
that belief, even if the belief is mistaken, provided that some other conditions are satisfied.

Note that there is no separate free-standing defense of mistake, a claim must be

made with specific regard to what kind of mistake

 whether honest mistake would be sufficient to negate liability, or rather it is

necessary for the mistake to be reasonable (i.e. non-negligently held): no general
answer, depending on the offence
 honest/genuine mistake happens to be sufficient when offences require intent,
like murder
 in contrast, when an offence requires only negligence rather than intent, an
honest but unreasonable mistake would not negate liability (since the mistake
is consistent with negligence)
 in order to know whether a mistake can negate liability in a case, we need to
first ask what are the MR requirements of the relevant offence, what are the
applicable defenses for that offence, and whether those defenses require
reasonable belief

 coincidence/concurrence
 general rule: the coincidence principle requires that the MR must coincide in time
with the relevant AR
 Conduct without MR at t1, MR without (apparently) a relevant conduct at t2
 Fagan v Metropolitan Police Commissioner:
D’s car stopped on V’s foot without MR. After noticing that, D did nothing.
→continuing act
 R v Miller

In effect treating the whole course of conduct of the accused, from the
moment at which he fell asleep and dropped the cigarette on to the mattress
until the damage to the house by fire was complete, as a continuous act of the
accused, and holds that it is sufficient to constitute the statutory offence of
arson if at any stage in that course of conduct the state of mind of the accused,
when he fails to try to prevent or minimize the damage which will result from
his initial act, although it lies within his power to do so, is that of being
reckless as to whether property belonging to another would be damaged.

omission usually does not give rise to liability if there is no duty to act

exception: when D had previously created a danger/risk (does D know?)

→ D under a duty to take reasonable steps to prevent any harm resulting from
the danger/risk

 MR at t1, but conduct at that time (arguably) did not cause the relevant
consequence. Conduct at t2 caused the relevant consequence, but no MR at that
time.
  Thabo Meli: D attacked V at t1. D thought it killed V. But actually V was
still alive. D disposed of what he thought to be V’s dead body (which was
in fact a living person). This killed V.

→Single transaction; alternatively, D’s conduct at t2 did not break the chain of
causation between D’s conduct at t1 and the death of V

 The doctrine of transferred malice/transferred MR: same type of offence but to the
wrong person
 General rule: combine AR towards V1 with MR towards V2 to make an offence
towards V1
 Limitations:
 MR and AR must be of the same offence;
 Double transfer: AG’s Reference (No 3 of 1994)

Presumption of innocence
 Substantive issues vs issues of proof:
For every offence we can ask three questions
i. What are the relevant elements to determine D’s guilt or innocence?
ii. Who bears the burden of proof in relation to these issues?
iii. What is the standard of proof? → fixed standard according to who it is—
on the balance of possibilities/beyond reasonable doubt

 Two questions to be considered in relation to burden of proof:

 As a matter of common law interpretation/legislative intent, is there any shift in
burden of proof?
 Assuming positive, is that constitutional? (i.e. does it violate with basic rights that
prevail over legislature)

 “Burden of proof” is presumed to be legal/persuasive burden of proof, rather than

evidential burden of proof

 Common law interpretation:

“Ascertain the meaning of [the relevant provision] according to accepted common law
principles of interpretation as supplemented by relevant statutory provisions.” (Lam
Kwong Wai).

 Ascertain the legislative intent, in light of the language and context (Lam Kwong
Wai)
  Language is important; but not just language, also need to look at purpose and
context (Lam Kwong Wai)

 In other words, not only linguistic “form”, but “substance and reality” Lee
Kwong Kut

 Starting point of burden of proof: the presumption of innocence [a constitutional right],

i.e. the common law rule that P has to prove every fact necessary to determination of

guilt. Ng Po On
 Woolmington:

Throughout the web of the English common law one golden thread is always to be seen,
that is the duty of the prosecution to prove the prisoner’s guilt subject to the defense of
insanity and subject to any statutory exception.

AR proofed, MR assumed, burden of proof for otherwise on the defendant

We should find a legislative intent to shift the burden of proof to D in two situations

 Express allocation of the burden of proof to D prove the alleged fact on the balance
of probabilities (lower standard, “civil standard”)
 Implicit shift of burden of proof → one of the most important ways to do that is by
operation of Criminal Procedure Ordinance s94A. read Ng Po On for exceptions!
 Tong Yiu Wah (2007) 10 HKCFAR 324
 The relevant provision in Tong Yiu Wah is Airport Authority Bylaw s20(1):

“No person shall loiter in any part of the Bylaw Area without reasonable cause.”

should the phrase “without reasonable doubt” be regarded as an EEQ?

“without reasonable cause” was an element of the offence, and so for the prosecution to
prove. … “loiter” refers to not “ordinary and legitimate” purposes connected with the use of
the airport and thus prima facie “without reasonable cause”…such construction better
achieved the object and purposes of the Bylaw by ensuring members of the public enjoyed a
large degree of freedom in making proper use of the Bylaw Area and requiring a justification
for the authority to interfere.

The court concluded that “without a reasonable cause” is an element of the s.20(1)
offence instead of an EEQ. Accordingly, s.94A does not apply and the burden of proof
remains on P

Is the relevant element common? Bear in mind that the width of offence and convenience
for prosecution are elements which might affect the allocation of burden of proof.

‘The presence in a statutory provision of a phrase similar to those set out in s.94A(4)
(such as "without reasonable cause" in the present case) does not necessarily make it a true
exception falling within s.94A of the CPO…’

‘In deciding [whether the phrase should be understood as an EEQ] , our first task is to
construe s.20(1) in order to ascertain what are the ingredients of the offence which the
prosecution must prove. In undertaking such task, one examines not only the form of the
provision but also the substance and reality of its language…’ A-G of Hong Kong v Lee
Kwong Kut & Others

‘s.94A of the CPO is not relevant in the construction of a statutory provision for the
purpose of ascertaining the ingredients of the offence created by the statutory provision in
question; s.94A is invoked only after it has been ascertained that the statutory provision has
created not only an offence but also an exception, exemption or qualification to the offence.’

 Criminal standards of proof: better let a guilty person go free than let an innocent person
go to jail.
 If the burden of proof is on P, the standard is always beyond reasonable doubt
 Proof on D: only need to prove the fact on the balance of probabilities (usually
more than 50%) → “civil” standard of proof

 Evidential burden of proof

 Lam Kwong Wai : “[An evidential burden] requires only that the accused must
adduce sufficient evidence to raise an issue before it has to be determined as one
of the facts in the case. The prosecution does not need to lead any evidence about it,
 so the accused needs to do this if he wishes to put the point in issue. But if it is put
in issue, the burden of proof remains with the prosecution. The accused need
only raise a reasonable doubt about his guilt.” → evidential burden is concerned
with factual issue
Or in Ng Po On: in such cases, there must be evidence supporting such exculpatory
matter which is sufficiently substantial that it raises a reasonable foubt as to the
defendant’s guilt.
 An evidential burden, functioning in this manner, is wholly consistent with the
presumption of innocence.”
 Ng Po On: An evidential burden stands in contrast to a reverse persuasive burden.
As a matter of logic, D bearing the legal burden is inconsistent with P bearing the
legal burden; but D bearing the evidential burden is consistent with P bearing the
legal burden.

 Constitutional review:
 A statutory provision is invalid if inconsistent with the Basic Law
 Presumption of innocence: a common law rule and a constitutional principle
art.87 of BL: “anyone who is lawfully arrested shall have the right to a fair trial by
the judicial organs without delay and shall be presumed innocent until convicted by
the judicial organs”
 As long as there is a shift in legal burden of proof in relation to some facts relevant
to the determination of guilt, the presumption of innocence is engaged

(abrogated/derogated/infringed/encroached). It does not matter whether the

ultimate fact which the defendant is required to prove involves an element which
may be characterized as an essential ingredient of the offence or a matter of
defence. (Ng Po On)
 Abrogation could be justified if it passes two tests (Ng Po On):
 The rationality test: is the abrogation “rationally connected with the pursuit of
a legitimate societal aim?
 The proportionality test: is the abrogation “no more than necessary to achieve
the aim”? → one important consideration is whether a mere shift in evidential
burden, rather than a shift in legal burden, can be sufficient to achieve the
aim.
 The burden to justify abrogation is on the state and the justification must be
“compelling”.
 The standard of justification/how much defence should we give to the
legislature? Vary from case to case depending upon the nature of the problem,
whether the executive and the legislature are better equipped than the courts to
understand its ramifications and the means of dealing with it. In matters of
serious crime, the courts must recognize that the legislature has the
responsibility for determining policy and framing the elements of the offence.
 However, if the issue turns on matters of proof, onus and evidence, the court is
able to form its own judgement, without labouring under a disadvantage vis-à-
vis the legislature.
 Remedial measure
 When the court rules that a statutory provision which allocation of legal burden of
proof to D is unconstitutional, what next?
 Strike down the statutory offence entirely
 Preserve the validity of the statutory provision but offer a remedial
interpretation, e.g. ‘read down”, interpret the relevant phrase as only requiring
a shift in evidential burden.

Presumption of Men’s Rea

Use Hin Lin Yee and Kulemesin to nail down the structure of determining what alternative is
most likely to use in a given case (likely to include case comparisons, like what are “true
criminal cases”? → Sweets and Parcey)

Cite the most relevant cases when analyzing a particular question

 Presumption of MR:
When statues do not spell out the MR requirement explicitly, the presumption is that
Parliament did not intend to make criminals of persons who were in no way
blameworthy in what they did. That means that whenever a section is silent as to men’s
rea there is a presumption that, in order to give effect to the will of Parliament, we
must read in words appropriate to require men’s rea [no offence without a guilty mind]
Note:
 The presumption is rebuttable and does not apply in every case
 Every AR element of an offence requires a corresponding MR
 E.g. “A person who caused X in place Y shall be guilty of an offence”;
MR as to both “causing X” and “place Y”
 Third, (setting aside constitutional challenges) in interpreting a statutory provision
ultimately we are trying to ascertain the legislative intent; so the presumption of
MR is a presumption about the legislative intent – i.e. whether the legislature
intended to create an offence without (full) MR.
 What are the considerations that can help rebut the presumption

→ if creating an offence without full MR “must have been the intention of the
legislature” (it is a universal principle that if a penal provision is reasonably capable of
two interpretations, that interpretation which is most favorable to the accused must be
 adopted.)

 suppose the presumption is not rebutted, what is the men’s rea requirement to read
in?
 Where the offence prohibits a particular act, the presumption of men’s rea
generally requires the statute to be read as requiring voluntariness and
“intention or recklessness” in the performance of that act. And where
criminality is dependent upon that act being done in specified
circumstances, the provision is construed as requiring it to be shown that
the defendant “knew of or was reckless” as to the existence of those
circumstances. Cautious men’s rea, oppose to negligence;

 Options after the presumption of men’s rea is rebutted (kulemesin):

Can be divided into 2 categories:
Rebutted but mental state relevant:
reasonable/honest mistake leads to acquittal

No MR required (not necessarily means full/absolute liability if considering other

elements)

Kulemesin framework: preference of D, high → low

 first alternative: if the presumption of MR is not rebutted, i.e. P needs to prove, in

addition to AR elements, that
 D knew or was reckless as to the fact that he was doing X, and
 D knew or was reckless as to the fact that he was in place Y.
Recklessness: consciously taking an unreasonable risk

Suppose that the presumption of MR is rebutted in relation to “place Y”, i.e. prosecution
does not need to prove that D knew or was reckless as to the fact that he was in place Y.

MR interpreted as intention or recklessness subjective

 second alternative: the men’s rea constituent [halfway house defense 1]:

P does not need to prove “D knew/was reckless as to the fact that he was in place
Y”; but if D discharged the evidential burden for “D had an honest and reasonable
belief that he was NOT in place Y”, then unless P can prove beyond reasonable doubt
that D did not really have such a belief or such belief was not reasonably held, D would
be acquitted. (evidential burden shifted to D)

Note:
 “honest” belief = genuine belief; reasonable = non-negligently held
  Reckless is a subjective mental state
 Halfway house defense (HWH) is not recognized in English law [caution when
relying on cases in other jurisdictions!]
 More in line with presumption of innocence

 third alternative: the “defense” approach [halfway house defense 2]:

P does not need to prove “D knew/was reckless as to the fact that he was in place
Y”; but D will be acquitted if D can prove on the balance of probabilities that “D had a
honest and reasonable belief that he was NOT in place Y”. (legal burden shifted on D)

Note:

 in effect this defence turn the offence into an offence of negligence

 this alternative requires constitutional justification
 both halfway house defence is targeted at negligence objective
 Choi Wai Lun vs Kulemesin; Choi Wai Lun vs So Wai Lun

 forth alternative: statutory defense:

P does not need to prove “D knew/was reckless as to the fact that he was in place
Y”; and the only defences that are available to D is the statutory defences, since the

existence of the statutory defence implies that the legislature does not intend the
availability of any of the two HWH defences.

Note:

 Only focus on halfway house defence if there is no statutory defence provided.

 See tutorial 4
 Hin Lin Yee: all reasonable steps and someone else is responsible – not the
third alternative
 If the statutory defense is different from half-way house defense, then D has
two different type of defenses; if largely overlaps, statutory defense is likely to
displace halfway house defense

 fifth alternative: absolute liability (above 3 alternatives → strict liability):

D’s belief about location is entirely irrelevant to conviction
Can raise defence concerning AR elements
  So Wai Lun (CA)
 Both alternative one and five are a bit no longer fashionable

 How to certain which alternative to choose?

 General aspects:
 The statutory language
 Explicitly rejects MR: In any proceedings for an offence under section
8(1) …it shall not be necessary for the prosecution to prove that the acts
or omissions in question were accompanied by any intention, knowledge,
or negligence on the part of the defendant as to any element of the offence
 Implicitly excludes MR: “(1) It shall be an offence to do X. (2) D has a
defence if he can prove that he did not do X intentionally or recklessly”.
→ not requiring full MR in (1)
 Legislative history
 The nature and subject matter of the legislation
 Seriousness → maximum deterrent effect?
 Regulatory offences (e.g. public health, licensing, industrial legislation):
public importance, penalty less, personal interest less
 Statutory objectives

“Any person who sells…any drug intended for use by man but unfit for
that purpose, shall be guilty of an offence”

The legislative purpose of protecting the public from being sold unfit
drugs would tend to be defeated if section 54(1) were construed to require proof
of men’s rea in respect of the unfitness. It is therefore necessary to consider
what alternative basis of liability was intended.

 Difficulty for prosecution

 …