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Crim notes - Summary Criminal Law
Criminal Law (The University of Hong Kong)
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HKU Criminal Law
Capacity
3
MR/ guilty mind/ culpability
3
Offences against person
Common assault (s.40 OAPO; 1 year imprisonment, not arrestable
offence)
Assault occasioning ABH (s. 39 OAPO; 3 year imprisonment)
Wounding/ inflicting GBH without intent (s. 19 OAPO; 3 year
imprisonment)
Wounding/ GBH with intent (s. 17 OAPO; life imprisonment)
Assaulting a police officer acing in due execution of duty (s36(b)
OAPO; s63 Police Force Ord; 2 year imprisonment)
Wilful neglect of a child (s27 (1) OAPO)
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8
9
9
10
10
10
Sexual offences
11
Rape (s118 CO, on conviction on indictment to imprisonment for life) 11
Indecent Assault (s122 CO; 10 years imprisonment)
11
Role of consent
12
Offences against properties
15
Theft (s9 TO; 10 years imprisonment)
15
Robbery (s10 TO; life imprisonment)
16
Criminal Damage (s60 Crimes Ordinance; arson: life imprisonment/
others: 10 year imprisonment)
17
Misconduct in public office (common law offence)
17
Murder/ Manslaughter (consequence [+causation] required) 18
Murder (s2 OAPO [defined in CL], life imprisonment)
18
Manslaughter (s7 OAPO, life imprisonment)
18
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General defences
EXEMPTION DEFENCES (no objective standard)
Insanity (CPO s74; real defence or negate AR/ MR; burden on D if
raised by D)
Automatism (common law; denying AR  no MR; burden on P)
NON-EXEMPTION DEFENCES (about reasonable response)
Crime prevention (CPO s101A(1); to a risk of crime commission)
Self-defence (common law; to aggression)
Lawful arrest (CPO s101A(1))
Justificatory Necessity
Duress (common law; *not apply to murder; to threats)
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24
24
26
29
29
29
31
32
33
Special defences related to murder/ manslaugter
36
Diminished Responsibility (s3 Homicide Ordinance)
36
Provocation (angry  loss of self control, originated in common law,
s4 Homicide Ordinance)
37
Complicated offence
Extending liability (complicity/ participation) - introduction
AACP by individual act
Joint enterprise
Inchoate liability
Incitement
Conspiracy (s.159A, CO)
Attempt (s159G)
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40
41
45
51
52
55
58
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Capacity


Children < 10 years old no criminal liability (JOO s3); if under 14  juvenile court
Insane people (look insanity part)
AR (external elements)



Conduct; something done [act or omission];
Consequence or harm caused;
Existence of relevant circumstances (e.g. in a public place)
MR/ guilty mind/ culpability
- intention, recklessness, maliciousness, knowledge, mistaken belief
INTENTION (CONDUCT/ CONSEQUENCE)
 generally seen as the worst / most blameworthy kind of MR (> reckless or negligently)
 intention changes the normative significance of D’s conduct
The “golden rule”
 In most cases, intention is to be given its normal meaning: aim or purpose
 R v Moloney [1984] UKHL per Lord Bridge - judges normally avoid defining intention by
telling the jury to give it its ordinary meaning:
o “The golden rule should be that, when directing a jury on the mental element necessary
in a crime of specific intent, the judge should avoid any elaboration or
paraphrase of what is meant by intent, and leave it to the jury’s good sense to
decide whether the accused acted with the necessary intent, unless the judge is
convinced that, on the facts and having regard to the way the case has been presented to
the jury in evidence and argument, some further explanation or elaboration is strictly
necessary to avoid misunderstanding.”
The “virtual certainty test”
 In rare or exceptional cases, further direction is necessary
 Older cases referred to foresight of a substantial risk
 Nedrick direction [1986] (UKCA)
 “Where the charge is murder and in the rare cases where the simple direction is not
enough, the jury should be directed that they are not entitled to (infer) the necessary
intention unless
o they feel sure that death or GBH was a virtual certainty (barring some
unforeseen intervention) as a result of the D’s actions and that
o D appreciated that such was the case.
 The decision is one for the jury to be reached upon a consideration of all the evidence.”
 HL in R v Woollin (Stephen Leslie) [1999] approved the Nedrick direction
Applicable in HK and to offences other than murder
 applied in HK and held to be applicable to offences other than murder (SFC v Zou Yishang (
鄒藝尚) (2007 CFI) – dealing in securities with an intention of creating a false or misleading
appearance of active trading in those securities [statutory offence])
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What does “virtually certain” mean?
 Herring: result will occur unless sth completely unexpected occurs/ as certain as we can be
about anything
→ not just probable, highly probable, etc.
Potential uncertainties after Woollin
(1) Lord Steyn in Woolin changed the word “infer”  “find”
 Lord Steyn did not explain the reason for the change
 if proved, does it amount to
o “intention” to cause death or GBH (substantive effect)? OR
o merely provide an evidential foundation from which “intention to kill or cause
GBH” may be inferred (evidential effect)?
 “infer” sth = to use one fact to presume the existence of another fact
(Herring’s e.g: wedding ring  married)
 Ashworth: the change has little practical significance
(2) may or must the jury find intention?
 the use of “entitled” suggests that the jury may identify intention, but, alternatively
may not do so
 “entitled” is permissive rather than obligatory
 Lord Steyn did not say the jury must find intention
 the jury is said to have “moral elbow room” (greater flexibility in interpretation)
Direct intention
Oblique intention
a consequence is directly intended if D acts in
a consequence is obliquely intended if a
order to produce it (the standard or paradigm
consequence is not D’s aim but is known to be
case)
certain (the virtually certain case)
Intention in MURDER– Departure from the correspondence principle
 Sufficient if D only foresaw GBH (rather than death) being virtually certain departs
from the correspondence principle (MR should always match AR) - constructive
criminal liability?
- some critics argue that nothing less than an intention to kill should suffice
- one argument for the departure is that there is no significant moral difference
between someone who chooses to cause really serious injury and someone who sets
out to kill
 HKSAR v Lau Cheong [2002]
- constitutional challenge against the “GBH rule” failed  still require intention to
GBH
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RECKLESSNESS – CONSEQUENCE (*AS TO CIRCS IN RAPE , SEE BELOW)
 Risk-taking is at the heart of recklessness - D took a foreseen risk which was unreasonable
for D to take
 Easier to prove/ broader basis of liability (compared to intention)
(1) *Cunningham recklessness
1. D was aware that there was a risk that his conduct would cause a particular result; AND
2. the risk was an unreasonable one for D to take
 subjective foresight - the question is whether D foresaw the risk (not whether it is obvious
or would have been foreseen by a reasonable person)
 principle of individual autonomy/ importance of respecting choice
 some critics argue that Cunningham recklessness is too narrow
(2) Caldwell recklessness
D was Caldwell (Lord Diplock) reckless if:
1. D was aware of a risk; OR
2. there was an obvious and serious risk and D failed to consider whether or not there was
a risk


considerably broader and more objective than Cunningham recklessness
many critics argue that Caldwell recklessness is too wide
o Lord Diplock’s test admitted of no exceptions, included Ds who were not aware of an
obvious risk
o punished Ds for failing to notice a risk which would have been obvious to a
reasonable person
o Failed to consider a D who does not possess the relevant cognitive skills
blameworthy, and reckless, when he fails to give thought to a risk which would be
obvious to the ordinary, prudent person
Elliott v C
 a 14 year-old girl of low intelligence set fire to a shed by lighting white spirit
[1983]
 the QBD followed Caldwell
 whether a reasonable person would have realised that the lighting of the
spirit would create a risk of damage to the shed, NOT whether the risk was
obvious to D or obvious to a reasonable person of D’s age and mental abilities
 D was guilty of criminal damage
Robert Goff LJ felt constrained by the decisions of the HL in Caldwell, R v
Lawrence (Stephen) [1982] AC and R v Miller [1983] AC, but he expressed his
unhappiness and plainly did not consider the outcome to be just
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HL in R v G [2003] UKHL rejected Caldwell recklessness
RvG
 Ds, aged 11 and 12 respectively, went camping w/o parents' permission
[2003]
 Ds threw lit newspaper under a large plastic wheelie-bin  left the yard w/o
UKHL
putting the fire off
 Newspapers set fire to the first wheelie-bin; the fire spread from it  the
wheelie-bin next to the shop wall; from the second bin  the roof space of the
shop
 the roof of the shop and the adjoining buildings caught fire, the roof collapsed
Accepted that neither D appreciated that there was any risk whatsoever of the fire
spreading in the way that it eventually did
 UKCA saw great force in the criticisms of Caldwell but could not depart from
it
 Point of law of general public importance for HL and HL departed from it
Lord Bingham
 It is not clearly blameworthy to do sth involving a risk of injury to another
if (for reasons other than self-induced intoxication: (Majewski [1977]) one
genuinely does not perceive the risk.
 The present case shows that the model direction formulated by Lord
Diplock is capable of leading to obvious unfairness.
the need to correct the misinterpretation is compelling.
Lord Steyn (refer to Convention on the Rights of the Child); Lord Rodger (rely
on statutory interpretation grounds)
R v G was later accepted in HK (HKSAR v Sin Kam Wah (2005))
Comment:
 HL’s decision is generally welcomed but not without critics (e.g. failed to consider any
alternative)
 2 alternatives, Ds would be reckless if:
(1) if they were aware of a risk or failed to consider a risk which should have been obvious to
a reasonable person of their age and mental abilities
if they were aware of a risk or failed to consider an obvious risk, without a good explanation 
acquittal if due to an illness or emergency, but lead to the conviction if due to anger or
drunkenness
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MALICIOUSNESS (CONDUCT/ CONSEQUENCE)
Cunningham
 Held that the modern understanding of ‘maliciously’ did not mean WICKED but either
 (1) intention to do the particular act OR
 (2) recklessness as to whether the harm should occur (subjective foresight of consequences)
o Applied in common law offence of assault (Venna)
* Note if aggravated forms of assault (19/ 39 of OAPO)  look at below (Savage; Parmenter)
 ‘intentionally or recklessly as to some physical harm, albeit not serious’
KNOWLEDGE - CIRCS
 Actual knowledge
 Or in some circumstances, ‘wilful blindness’
o D suspected the circumstances existed, but deliberately refrained from finding out
for certain (shut his eyes to the obvious)
 NO constructive knowledge
R v Taaffe (1984 HL)
 Smuggled a controlled drug
 Mistakenly believed the goods to be currency (not prohibited goods, but D thought it was)
 Need to know the precise nature of goods?
 Held:
o Not absolute liability, depends on guilty mind
o To be ‘knowingly concerned’ = knowledge NOT ONLY of the existence of
smuggling operation BUT ALSO the substance being smuggled was prohibited
by statute
o The substance did make a difference whether it is criminal offence
 Note here the mistaken belief as to LAW will not affect anything (it will convert it to
become/ or escape criminal offence) – only concern the FACTS he believes
MISTAKEN BELIEF
DPP v Morgan (1976 HL) re-affirmed by HLs, e.g. B (A Minor) v. DPP [2000]; R v. K [2002]
 Morgan, including other 3 Ds, members of Royal Air Force, all raped Morgan’s wife
 The 3 Ds argued they mistakenly believed, induced by Morgan, that his wife was kinky and
enjoyed such rough sex and was only play acting
Held:
 A mistake (i.e. mistaken belief) of fact may be relied on if it negates the MR of alleged
offence
 The burden of proving BRD that D did not act under any such mistaken belief lies on P
 A mistake of fact may be relied on even if it was unreasonable (*unless statute requires
otherwise or common law exceptionally requires it)
 Reasonableness of a mistake may be taken into account in deciding whether D may have
made the mistake (i.e. acted under mistaken belief)
NB. Rape in HK (also UK) now defined by statute (since 1976 in UK, 1978 in HK)
 S118(3) CO: ‘knows’ or ‘is reckless’ as to consent
 S118 (4) CO - reasonable grounds should be considered
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Offences against person
Common assault (s.40 OAPO; 1 year imprisonment, not arrestable offence)
Common law offences, focus on the intended or foreseen effect
Both assault and battery defined in Collins v Wilcock
Assault
Battery
 An act (not omission) causes another person  Actual infliction of unlawful force on
to
another person
o Any touching of another person,
 apprehend (anticipation, need not be
however slight, may amount
fearful)
(Not only physical injury but any
 the infliction (cf. anticipation) of immediate
form of physical molestation)
(cf. future), unlawful force on his person
o Direct/ indirect contact (throw sth
ok)
Intention/ reckless (deliberately, not accidental)
P NEEDS TO PROVE THESE FACTORS THAT CONSTITUTES LAWFULNESS DO NOT EXIST
(1a) Consent (expressed or implied) – AR – see p.8
o Unless it is invalid or obtained by fraud/ duress (only if deception relates to identity of
deceiver or nature of the act)
(1b) Genuine belief such circumstances existed (mistaken belief suffice – MR)
(2) All physical contact which is generally acceptable in the ordinary conduct of daily life
o e.g. touch to draw attention/persistent touching to gain attention in the face of obvious
disregard, cf. physical restraint
o The test: whether the action in the circumstances beyond the generally acceptable
standards of conduct (Collins v Wilcock: police took hold of the D by the left arm to
restrain her, not under duty  not ok)
(3) Lawful correction/ self defence or crime prevention/ necessity
Special kinds of assault
Words
Words said may suffice to be assault, must be seen in their whole
context (a thing said is also a thing done, e.g. ‘Come with me or I will stab
you’) (R v Ireland/ Burstow, HL)
A series of silent
Caused the receiver to have a condition of psychiatric illness, could be
phone calls
assault, but not battery due to the lack of any kind of physical contact
between D and V, not feasible to enlarge to this area (R v Ireland/
Burstow)
Using his silence as means of conveying a message to his victims, with
malicious, deliberate purpose  fear the possibility of immediate personal
violence VS sometimes silence just because thinking/ processing
Special kinds of battery
Camera flash-bulb
May be battery, bright light is deliberately shone into another’s eyes and
injures his sight
 Obiter in Kaye v Robertson, but doubted in Winfield and
Jolowicz on Tort, difficult to reconcile with the fact that trespass is
actionable per se, uncertain about it, e.g. heat/ light/ blowing smoke
Words or sounds
Agreed it is uncertain, but as a matter of common sense, do feel heat, see
amplified by a
light and hear sound (these forms of energy must be constantly touching us,
loudhailer during a through our different organs), although if take this too extreme, talking
protest rally
might amount too, but here we definitely will not consent/ expect to be
touched by this form of action (HKSAR v Leung Chun Wai, Sunny,
CFI)
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Loud whistling
towards a person’s
ear
Affirmed that this without any bodily contact can amount to a battery too
(HKSAR v Ki Chun Kei)
Assault occasioning ABH (s. 39 OAPO; 3 year imprisonment)
1. Assault: common assault (AR and MR of battery/ assault)
2. Occasioning: causing, no need MR (D intended/ forsaw)
3. Bodily Harm: ‘Any hurt or injury calculated to interfere with the health or comfort of the
victim’ (Miller [1954]), may be temporary, but not merely transient (瞬間) or trifling, eg.
scratch, bruising may suffice
Psychiatric illness amount to BODILY HARM? Yes
Rv
Although the Victorian legislation would not have had in mind psychiatric illness,
consider it in the light of contemporary knowledge cover a recognizable psychiatric
Ireland/
injury (the changing of circumstance), the current scientific appreciation of the link
Burstow
(HL)
between physical and psychiatric injury that they are no means clear cut, it held that
bodily harm must be interpreted so as to include recognizable psychiatric harm (not
simply unhappiness)
Causing harm by omission? (generally no but only if cause death  property [Miller]  bodily
harm here)?
SantanaFact:
Bermudez
 S-B convicted of OABH (s39 OAPO). During lawful body search, S-B put
(2003, UK)
contents of pockets on table, PO noticed syringes w/o needles and asked S-B
whether any needles or ‘sharps’ on him.
 S-B replied ‘No’ [ failed to warn PO of risk], when PO put two fingers into a
small pocket in S-B’s jacket, her finger was pierced by a hypodermic needle.
Held:
 Allowed appeal (re-impose assault liability for omission, Miller apply) holding
that where someone by act or word or a combination of the two creates a danger
and thereby exposes another to a reasonably foreseeable risk (some certainty
exists) of injury which materialised, there is an evidential basis for the AR of
an assault occasioning ABH
o Words said – constitute action
o Based on concept of continuous act: when D placed needles in his
pocket (ACT), existed for sometime and continued, MR joined in when he
LIED
 MR must also be proved (may negate if genuinely forgot there is a needle)
Although generally reluctant to recognize a more general ‘duty to prevent harm’
applicable to OAPO, based on Miller, but have occasionally shown signs of doing
so
Wounding/ inflicting GBH (s. 19 OAPO; 3 year imprisonment)
 Unlawfully and maliciously wounds or inflicts any GBH
 AR:
(1) Unlawfully: discussed above in assault (without consent/ SD/ CP)
(2a) Wound: break in continuity of skin, not merely scratch (must cut through the skin), OR
(3a) Inflicts: causes;
(3b) GBH: really serious bodily harm
 MR: maliciously - ‘intentionally or recklessly as to some physical harm, albeit not serious’
R v Savage
R v Parmenter
Mrs Savage threw beer + glass to her husband’s ex. The glass broke P’s
wrist. (did not foresee will cause harm)
Father not used to handling young babies caused his baby son suffering
injuries (bone fracture) (did not foresee will cause harm)
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Wounding/ GBH with intent (s. 17 OAPO; life imprisonment)
 AR: Unlawfully by any means whatsoever (shoots [section b]), wounds or causes any GBH
 MR: Maliciously + With intent to maim, disfigure or disable any person/ to do some other
GBH/ intent to resist or prevent the lawful apprehension or detainer
Assaulting a police officer acing in due execution of duty (s36(b) OAPO; s63 Police
Force Ord; 2 years imprisonment)
Any person who assaults, resists, or wilfully obstructs any police officer in the due execution of his
duty
(1a) Assault: assault or battery; OR
(1b) Resist: where does not apply force to PO; OR
(1c) Wilfully obstructs: prevents PO carrying out his duty, e.g. obstructs PO while arresting
(2)
PO and in the due execution of his duty – strict liability
May object by:
 PO had no statutory or common law power to act
 PO exceeded scope of any such powers
 PO failed to exercise powers in accordance with rights protected under BL or BORO, eg.
Yeung May Wan – arrest of Falun Gong demonstators
Wilful neglect of a child (s27 (1) OAPO)
If any person > 16 yo who has the custody, charge or care of any child or young person under that
age
 wilfully assaults, ill-treats, neglects, abandons or exposes such child OR
 causes or procures such child to be assaulted, ill-treated, neglected, abandoned or
exposed
in a manner likely to cause such child unnecessary suffering or injury to his health (including
injury to or loss of sight, or hearing, or limb, or organ of the body, or any mental derangement)
The person shall be deemed to have neglected him in a manner likely to cause injury to the young
person’s health
 if he fails to provide adequate food, clothing or lodging for him, OR
 if, being unable otherwise to provide such food, clothing or lodging,
o he knowingly and wilfully fails to take steps to procure the same to be provided by
some authority, society or institution which undertakes to make such provision for
necessitous children
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Sexual offences
Rape (s118 CO, on conviction on indictment to imprisonment for life)
S118 (3) CO
 AR:
o He has unlawful sexual intercourse with a woman
o Who at the time of the intercourse does not consent to it (circ)
 MR:
o At that time he knows/ reckless that she does not consent to the intercourse (circ)
S118 (4) CO
 the jury has to consider whether a man believed that a woman was consenting to sexual
intercourse, the presence or absence of reasonable grounds for such a belief is a matter
to which the jury is to have regard, in conjunction with any other relevant matters, in
considering whether he so believed.
 genuine mistaken belief is not a defence (standard of a reasonable person, not D)
Reckless as to circs – different from the normal reckless to reflect the nature of rape
 Here reckless as to circs [state of mind of V] (cf. a consequence of the criminal act)
R v Satnam  Being reckless as to consent (13 yo, though apparently looked older and worked
(1984 CA)
part-time there)
 Here is about foreseeability about a state of mind, not the consequence
 *Based on Caldwell recklessness (objective, obvious and serious), but more
blameworthy
Take into account all relevant circumstances, whether D had reasonable grounds
for such mistaken belief, two types:
(1). If no genuine belief that V wanted to  find him guilty
(2). If like in the case Kimber (1983)
 ‘couldn’t care less’ attitude (indifference to V’s feelings and wishes at
all) recklessness
After R v G, Caldwell recklessness should be rejected?
Li Kim Ching (2007 CA)
 Approving the continued use of direction based on Satnam
Kwan Chi Wing (2009
 Rejected application for leave to appeal against use of the Satnam
CFA appellate
direction
committee)
Indecent Assault (s122 CO; 10 years imprisonment)
S122 (1) CO: A person who indecently assaults (the meaning of it remains common
law) another person
S122 (2) CO: If V under 16, consent will not negate assault for the purposes of s122
AR:

Causes V to apprehend immediate/ actual infliction unlawful personal violence (common
assault)
o Consent may negate unlawfulness unless it is invalid/ obtained by fraud or duress
(mistaken belief about consent suffice too)
 Indecent circumstance (capable to be indecent  indecent purpose)
MR: do it intentionally
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Mok Pak
Wo [1980]
robbers made Vs strip naked - took photographs– not matter whether done for
‘indecent’ purpose
 Not IA if D’s conduct was not ‘objectively indecent’, even if D acted with an
‘indecent purpose’ – but what if conduct ambiguous?
Court [1988  C (male shop assistant) ‘smacked’ 13 yo girl (wearing shorts) on her bottom
HL]
during visit
 C’s act not clearly ‘objectively indecent’ – not by its nature nor by reason of C’s
words at the time
 But C admitted he acted out of secret ‘buttock fetish’ (motive sexual)
(1) Intentional assault
(2) Assault OR assault + circs accompanying it, capable of being considered by
right-minded person as indecent (Objective test)
o Lord Ackner: D’s conduct must be ‘so offensive’ to contemporary
standards of modesty and privacy as to be indecent
o Lord Griffiths: conduct that right-thinking people will consider as an
affront to the sexual modesty of a woman
(3) D intended to commit such an assault in (2)
Inherently
indecent
Always
Ambiguous
Depends on if it is done for
sexual purpose
No one would say
indecent
Always not
Stolen kiss
 In HK, courts have accepted argument that in the absence of additional circs of ‘indecency’,
a mere kiss’ is not capable of being considered as objectively indecent
 Additional circs of ‘indecency’
o Words used
o Fondling other private body parts
o Use of ‘force’ (manner vulgar and offensive? Ignore V’s will to satisfy his own will)
o Duration (10s in Ella Koon case)
o Place, any planning
Lam Chee Chi
 Problematic (stranger in MTR thought she is ex) – not capable of
[1992]; Fong Chi
being indecent in “traditional standards” of morality? Affront to
Wai [1996]
contemporary standard of morality indeed?
 But to tackle the problem- if under 16 (puppy love), mistaken
belief cannot help
Cf. HKSAR v. Lau
 Appellant, aged 40, an office assistant asked a 12 yo girl (student)
Kwai Chung [2000
to meet him after she finish her practice. Appellant took her to a
CFI] - additional circs
small storage room. Kissed her, the girl struggled
of indecency existed
 Planning exists:
o A bag of sweets placed in advance.
o Isolated room, not regularly visited and usual storage for
musical instruments >> intended to do the act not open and
publicly
Role of consent
Consent may be
(1) an element of AR (e.g. in rape, to prove ‘lack of consent’), or
(2) a defence (e.g. assault, to negate AR/ MR about unlawful force)
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1. Meaning and definition
R v. Olugboja [1982] (UKCA)
 J ‘submitted’ to O’s demand for sexual intercourse, after first being raped by O’s friend, and
then seeing J’s friend dragged off and raped
 Issue: ‘submission’ = no ‘lack of consent’?
Per Dunn LJ:
 The statute only states the test – whether there is consent (whether due to force/ force/
fraud not matter)
 Ordinary meaning’ –
o “consent” is a common word it covers a wide range of states of mind in the context of
intercourse between a man and a woman, ranging from actual desire to reluctant
acquiescence.
 Although it is a common word, does not mean no need some further direction
 consent VS submission (sometimes not easy to draw the difference):
o Every consent involves a submission, but mere submission by NO means involves
consent
 In less common types not involving violence/ the fear of it,
o Jury should be directed to concentrate on state of mind of V immediately before
act of sexual intercourse, having regard to all relevant circumstances, and in
particular, the events leading up to act and her reaction to them showing their
impact on her mind.
 Apparent acquiescence
o AFTER penetration does NOT necessarily involve consent, which must have occurred
BEFORE the act takes place.
2. Limitations of consent
 Invalidity - capacity (age 16 for indecent assult)/ fraud or duress/ public policy
1. Fraud or duress
Only if deception relates to identity of deceiver (pretend to be doctor) or nature of act (it is
medical treatment)
Chan Wai Hung v.
HKSAR [2000]
(CFA)



Papadimitropoulos 
vR
R v. Konzani
[2005] EWCA


D told V he was going to give V a ‘first-aid demonstration’ – V ‘consented’
– D then touched V’s chest, inside of V’s thigh, ‘etc.’
Deception as to nature or quality of act
D convicted of IA
Deceived her into thinking he was her husband, when, unknown to her,
the ceremony which they had gone through was NOT a valid marriage
ceremony – NOT nature of act
NO Rape
D was convicted of inflicting GBH on 3 women by having unprotected
consensual sexual intercourse with them without disclosing he was HIV
positive
VS consented to sexual intercourse, so no deception as to nature of act?
CA upheld conviction
 Drawing distinction between consenting to ‘risks’ of unprotected
sexual intercourse and giving of informed consent to risk of infection
with HIV (leading to AIDS, potentially a fatal disease)  Nature of
act
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2. But may vitiate on policy grounds:
R v Brown (1994 HL)
o Homosexual men and boys (16+)
o SM sexual activity [acts involved ABH and more]- Pins, needles on genitals  blood 
↑HIV chances
o Acts done with consent of ‘victim’
o Ds convicted of (1) assault occasioning ABH + (2) wounding w/o intent
HLs (by 3:2 majority) concluded consent may not be relied on as ‘defence’ if
(1). if D intended to cause ABH (or more) OR
(2).
D actually caused ABH (or more);
(3).
Unless ‘exception’ (adopted A-G’s Reference (No. 6 of 1980) Lord Lane CJ) –
good policy reason
a. properly conducted games and sports,
b. lawful (parental) chastisement or correction,
c. reasonable surgical interference,
d. dangerous exhibitions, etc.
A-G’s Reference (No. 6 of 1980) Lord Lane CJ – a case where two boys fought with bare
fists:
o ‘it is NOT in the public interest that people should try to cause, or should cause, each
other actual bodily harm for no good reason.’
o It is immaterial whether the act occurs in private or in public; it is an assault if public
harm


These apparent exceptions can be justified as involving the exercise of a legal right, in the
case of chastisement or correction, or as needed in the public interest in the other cases.’
SM sexual activity is not exception
o Although here both are adults and taken in private place
o Majority said not to invent a defence to breed and glorify cruelty
o Minority argued that this offence is intended to deal with acts of violence, not
private sexual activity
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Offences against properties
Theft (s9 TO; 10 years imprisonment)
 S2: A person commits theft if he dishonestly appropriates property belong to another with the
intention of permanently depriving it
 AR:
(1) Appropriates (interference with owner’s rights)
 S4 TO: any assumption by a person of the rights of an owner, include without stealing it/
later assumption by keeping or dealing with it as owner (a person with the rights)
Appropriation requires consent of owner?
Rv
 No longer an ingredient of theft that taking should be w/o the owner’s consent
Lawrence
 Appropriation may occur even though the owner has permitted or
(HL, 1972)
consented
R v Morris
 The removal of an article from shelf and put it in trolley/ changing of the price
(HL, 1984)
label constituted the assumption of owner’s right
 But expressed opinion that appropriation involves not an act expressly or
impliedly authorized by the owner but an act by way of adverse interference
with usurpation of those rights
 Subsequently, Dobson case applied Lawrence, did not apply Morris
DPP v
Gomez falsely represented to his manager to accept the stolen cheques were ‘as good
Gomez (HL, as cash’, property transferred with consent but by false representation
1993)
 May be appropriation notwithstanding that it is done with the consent of
the owner (consent not relevant), adopted Lawrence
R v Hinks
Theft of $ voluntarily given to D by an older man to whom she provided care (limited
(HL, 2001)
intelligence, would interrupt him if he tried to say anything, naïve and trusting, no
idea of the value of his assets, could make decision but unlikely he could make it
alone)
 Affirmed Gomez of a neutral meaning for appropriation (irrespective of the
mental state of either owner or D), the receipt of a validly made gift =
appropriation, upon proof of dishonesty
 Convicted by jury that she had acted dishonestly by systematically raiding the
savings in a building society account of a vulnerable person who trusted her,
dismissed appeal
Appropriation meaning too wide? No, the MR are an adequate protection against
injustice
 Note dissenting judgment in p.66 CB
o failed to distinguish fully effective gift, if left all to dishonesty, become moral
judgment fully rely upon jury (arbitrary, strongly influenced by considerations
subjective to individual);
o if read in isolation, lead to contradictions
o aware the case of R v Mazo (old lady not mentally competent to make gifts and
D knew)
Using forged cheques (unauthorized transfer, void transaction  no appropriation  no
intention?)
Chan Man
Withdrawing $ from bank accounts by use of forged cheques, unauthorized
Sin (PC)
transaction (forgery/ deception)
 Ownership consists of bundle of rights, in order to constitute an
appropriation no need assumption by the D of ALL the rights of an
owner
 End result of the transaction that it may be a legal nullity (unauthorized transfer
by bank) entirely immaterial (once transaction initiated, there is assumption of
rights)
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Took cheques pre-signed by company’s authorized signatories but blank as to payee
and amount, paid into his own bank account (forgery)
 Appropriating chose in action (assumption to effect the diminution of the
credit balance of the company with the bank, took it for his own use)
 *But if insufficient fund, no enforceable overdraft arrangement, no relationship of
debtor and creditor since the bank is then under no obligation to honor the cheque
Bank transfers (electronic transfer, chose in action)
HKSAR v
Victims induced to hand over their credit cards and divulge PIN numbers, D then took
Wong Cho
the card and effect transfer from victims’ account to company’s account
Sum (CA,
 Preddy: the right in lender had upon transfer been extinguished? D has the title
2001)
now?
 Held: Not Preddy. He himself causes the transfer, does not obtain a chose in
action belonging to another, what he obtains is a fresh chose in action belonging to
himself, still guilty of theft if right of victim extinguished because of appropriation
(not to be equated with ‘obtain’)
 Her act in causing funds to be transferred, using the card of victim at an ATM
machine: appropriation
 Mode of appropriation not matter, central is whether there is an act of
appropriation
(2) Property
o S5 TO: includes money and all other property, real and personal, including things in action
and other intangible property (electricity not, stated in separate offence: abstracting
electricity)
o AG v Daniel Chan Nai Keung (PC):
 Facts: Selling quantity of the company’s textile export quotas to another entity belonging
to him at a substantial discount to market price
 Held: export quotas although not ‘things in action’ are a form of ‘other intangible
property’, anything that can be freely bought and sold, and which may clearly be the
subject of dishonest dealing which deprives the owner of the benefit it confers, intended
to have the widest ambit
(3) Belong to another
o S6 TO: person having possession or control / having proprietary right or interest
 MR:
(1) Dishonesty (looking at the circumstances of the transaction):
o S3 TO: what are not regarded as dishonest
 belief that he has in law the right;
 belief that he would have the other’s consent if the other knew;
 belief that the owner cannot be discovered by taking reasonable steps
o Ghosh test:
 1. According to the ordinary standards of reasonable and honest people what was done
was dishonest
 2. Whether D himself must have realized that what he was doing was by those standards
dishonest (even if he asserts or genuinely believes that he is morally justified)
(2) Intention of permanently depriving it
o S7 TO: intention to treat (lending/ borrowing maybe, for a period + in circs making it
equivalent to an outright taking or disposal) the thing as his own to dispose of regardless of
other’s rights
Cheng Lap
sun Patrick
(CA)
Robbery (s10 TO; life imprisonment)
A person commits robbery
 if he steals, AND
 immediately before or at the time of doing so, and in order to do so, he uses force on any
person/ puts or seeks to put any person in fear of being then and there subjected to
force
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Criminal Damage (s60 Crimes Ordinance; arson: life imprisonment/ others: 10 year
imprisonment)
(1) CD
(2) aggravated CD
(3) arson
Without lawful excuse
An offence
committed
Destroys or damages
under this
any property belonging to
any property, whether belonging to himself or
section by
another
another
destroying or
intending to destroy or
(a) intending to destroy or damage any property
damaging
damage any such property
OR being reckless as to whether any property
property by
OR being reckless as to
would be destroyed or damaged; AND
fire 
whether any such property
(b) intending by the destruction or damage to
charged as
would be destroyed or
endanger the life of another OR being
damaged
reckless as to whether the life of another would be ARSON
thereby endangered
R v Miller (HL 1983) – omission (general no, except cause to death)
Fact:
 M - vagrant - sleeping in empty house, fell asleep while smoking (created risk of damage by
fire).
 He awoke and saw mattress smoldering, went next door and sleep again (notice the risk but did
nothing), later the mattress caught fire and passer-by called firemen (prohibited consequence
occurred)
o D (accidentally or not) created a risk of such harm, knew of the risk, but failed to take
reasonable steps to prevent that harm from occurring
Held:
 CA explained it by continuous act (initial act + later failure to act), no duty
 HL by Lord Diplock:
o Better to rely on ‘duty’ or ‘responsibility’
o Language of statute did not exclude (expressly or impliedly) liability for ‘omissions’ - no
rational ground for excluding from conduct which consists of failing to take measures that lie
within one’s power to counteract a danger that one has oneself created
o D’s own act created the danger + D aware of the danger
  responsibility to take reasonable steps or measures to prevent or mitigate the risk/
danger
  failure to do so, liability for the consequence
o Still subject to proof of MR (intention/ recklessness)
Misconduct in public office (common law offence)
Shum Kwok Sher v HKSAR (2002 CFA) confirmed the existence of this offence (not lack
legal certainty)
Sin Kam Wah v HKSAR (2005 CFA) modified the approach
(1). A public official (gov’t officials/ civil servant/ police officer);
(2).
In the course of or in relation to his public office;
(3).
Willfully misconducts himself by act or omission, e.g., by willfully neglecting or
failing to perform his duty;
 not confined to conduct within his employment, extends also to conduct (acts or
omissions) “in relation to, or under colour of exercising, the office”
(4).
Without reasonable excuse or justification; and
(5).
Where such misconduct is serious, not trivial, having regard to the responsibilities of
the office and the office-holder, the importance of the public objects which they serve and
the nature and extent of the departure from those responsibilities.
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Murder/ Manslaughter (consequence [+causation] required)
Murder (s2 OAPO [defined in CL], life imprisonment)
 AR:
o Unlawfully: not in self defence/ crime prevention
o Killed: caused death (causation issue below)
 By act
 By omission
o A reasonable creature in being: human being
o Under the Queen’s peace: not during war
 MR (malice aforethought - A-G’s Reference (No.3 of 1994)/ HKSAR v Lau Cheong [2002]):
o Intention to kill/
o Intention to cause GBH
Manslaughter (s7 OAPO, life imprisonment)
Involuntary MS: (1) D caused death (AR) (2) without MR of murder
UNLAWFUL AND DANGEROUS ACT – CONSTRUCTIVE LIABILITY
 A-G’s Reference (No.3 of 1994) per Lord Hope of Craighead
o Whether it was unlawful
o Whether it was dangerous since it will cause harm to somebody (no need to be specific)
o Whether it caused the death (causation issue below)
o Whether the act was done intentionally
R v Church
 Shaking the body for about half an hour, thought she was dead, throw it to the
[1966 CA]
river (battery)
 Eventual cause of death – drowning
Not murder since cannot have intention to cause death/ GBH to a dead body
R v Lamb
(1967 CA)
unlawful
R v Dawson
(1985 CA)
dangerous
Meanwhile for MS,
 not only Unlawful = criminally unlawful
 but also Dangerous = all sober and reasonable people would realise involved
a risk of causing some physcial harm, albeit not serious (objectively assessed)
To be criminally unlawful + dangerous in the manner in R v Church  usually
based on proof of assault or battery - require the full AR+MR
 Two boys were playing with a revolver. There were 2 bullets in the chamber but
neither were opposite the barrel. The two boys believed that this meant it would
not fire. One of the boys pointed the gun at the other and fired. As he pulled the
trigger the chamber turned and the gun went off killing the boy.
 D neither intended to cause apprehension or infliction nor was reckless as
to such
o Jury should take into account the fact that he had undisputedly formed that
view – no matter whether he thought that which he was doing was SAFE.
 No assault → no unlawful act → no UDA MS
Whether an act objectively dangerous – take into account what D subjectively
knew/ believed/ at leaset ought to have realised about V and circs surrounding?
 Ds carrying a replica gun, demanded money from an old man suffering from
heart disease (unknown to Ds)
 The old man then suffered a fatal heart attack
The jury were aware of the attendant's heart condition whereas a reasonable
person as if he was PRESENT at the scene at the time of the attack would not
have known this.
 Same knowledge as the man attempting to rob and NO MORE.
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R v Ball
(1989 CA)
The appellant was involved in a dispute with a neighbour over her parking of car
on his land. D fired a shot at V to frighten her. D argued that he thought he had
loaded the gun with a blank cartridge. Intended only to scare/frightened. V died.
dangerous
Regina v
Watson
(1989 CA)
Assault satisfied (intention to cause apprehension). When assessing whether it is
dangerous, it is according to all sober and reasonable people  his mistaken
belief as to the gun whether it was loaded with a blank cartridge is irrelevant
D broke into the home. P was 87 years old and suffered from a serious condition of
heart.
Verbally abuse him, made off without stealing anything. P died of heart attack.
dangerous


Take into account: the knowledge which D gained during the WHOLE of his
stay, during the whole course of conduct.
D must have become aware that P’s frailty and approximate age.
GROSS NEGLIGENCE (OMISSION)
1. D was under a duty of care (involved risk of death)
Omission
No general common law duty to prevent harm or rescue, but common law courts recognized
that D may be liable for murder or MS by omission if D was under a (pre-existing) ‘duty to act’
such that breach of the duty might endanger life (causing death):
 Contractual duty to act - eg. lifeguard
 Special relationship of care - eg. parent / child
 Undertook to care for another - eg. family member
2. D breached duty (normal rules, compare to reasonable group of people)
3. The breach caused the death
4. Breach was ‘so bad’ it should be considered criminal
Andrews v
DPP [1937]
(HL)
R v.
Adomako
[1995] (HL)
D drove fast and caused death to V
 Determine whether the negligence amount to a crime
 The negligence must 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 punishment
 Not simply civil liability, require very high degree of negligence
Anaesthetist failed to monitor patient and react correctly – patient died
1. D was under a duty of care / to take care  D breached duty
2. The breach caused the death
3. Breach was ‘so bad’ it should be considered criminal
o The essence of the matter is whether having regard to the risk of death
involved, the conduct of the D was so bad in all the circumstances as to
amount in their judgment to a criminal act or omission.’
Voluntary MS: D had all the MR of murder, but he also satisfied some extra conditions
such that the charge is reduced to MS from murder
 Diminished Responsibility (DR) – by D
 Provocation – by P to disprove
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CAUSATION
Factual causation
 Ask: ‘Would the consequence [not] have occurred but for D’s conduct?’
 Minimal test of physical causation (on its own will suffice)
R v. White [1910]
 W attempted to poison mother, mother found dead of heart attack
 P could not prove heart attack ‘factually caused’ by poison
Legal causation
 Was D’s conduct sufficiently connected to the occurrence of the prohibited consequence
to justify exposing D to criminal responsibility for its occurrence? – more relaxed than civil
law cases
o Sufficient if D’s conduct was an ‘operating and substantial cause’
o Need not be only cause (‘a’ cause, no need to be ‘the’ cause)
o Need not be principal cause
o ‘Substantial’ if more than trivial
NAI (intervening events or acts)
 Will not ‘break the chain of [legal] causation’ if the event or act was ‘reasonably foreseeable’
o Naturally occurring events
o Acts by Victim
R v. Roberts (1972)
 V jumped from R’s moving car – V suffered ABH
 Held: V’s act was RF – thus not an NAI ‘unless … so daft … so unexpected …’
(but what you thought, but reasonable foreseeable)
Drug overdose case (MS?)- R v. Kennedy [2007] UKHL
 MS by UDA rejected by the HL on grounds death not ‘caused by’ any UDA by
D
 Supply – V’s own act – V’s death
 But possibly MS by GN if don’t assist?
o Acts by 3rd party
R v. Pagett (1983) (Eng CA)
 P forced G, at gun point, to go with P to P’s apartment block
 P, armed with a gun, holding G in front of him, began climbing the stairs
towards two armed POs  P allegedly fired a shot
 PO’s, who allegedly did not see G in front of P, fired back (selfdefence)
 G killed by bullets from PO’s guns
 Held: not ‘free, deliberate and informed’  not NAI, did not break  P
guilty of murder
Failure by medical staff to treat V properly
 Courts have generally rejected such claims
 Clear policy decision – reluctant to blame the doctors, being cured by doctor
just some extra thing helping D to prevent liability
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Jordan
(1956)
Smith (1959)
Exceptionally, NAI: ‘palpably wrong’ treatment by medical staff at time
when injuries already healed
Not NAI: CA laid down ‘operating and substantial cause’ test
Malcherek
(1981)
Cheshire
[1991] Eng
CA
Not NAI for doctors to turn off a life-support machine – M remained liable
for ‘causing V’s death’





R v.
McKechnie
[1992] (CA)
Airedale
NHS Trust
v. Bland
[1993] (HL)
-CB 85
(omission
case)
C critically stabbed V in thigh and stomach
V operated on, and a tube was inserted in throat, V remained in hospital
during recovery
Some 12 weeks after original injuries, V developed a ‘common’ respiratory
side-effect of tube in throat
Medical staff failed to diagnose or take appropriate steps to deal with sideeffect
V died of sudden respiratory failure
Held: Not NAI (to C’s murder)
 To be NAI, mis-treatment must be:
o ‘so independent of [D’s] acts, and in itself so potent in
causing death, that [the jury] regard the contribution made by
[D’s] acts as insignificant.’
 Drs discovered K had a pre-existing ulcer (requiring operation)
 Doctors decided not to operate while K still suffering from head injuries
 K’s ulcer burst, causing K’s death
 Decision not to operate immediately on the ulcer did not amount to a NAI
(to M’s murder)
Doctors deliberately turn off life-supporting machine
Death of a person
Medical world and of law – a person is not clinically dead so long as the
brain stem retains its function



Undisputed consensus – no prospect whatever that V will ever make
any recovery, but his life can be prolonged for a long time
Courts have avoided this by classifying doctor’s conduct as an
‘omission’
o Distinction between
 If already in his care, not to continue his care, allow to
die of the pre-existing condition (omission) – (cf.
outsiders, actively intervening) VS
 decides to actively to bring his patient’s life to an end, e.g.
give him drug (act)
**Only ‘murder’ if doctors ‘breach’ their ‘duty to act in V’s best
interests’ [by turning machine back on]
Sound
mind
Child
Unsound
mind
adult
Respect must be given to the wishes of patients (selfdetermination), the doctor’s duty is to act in the best
interests of his patient
Ward of court, court can help decide
 No condition to be able to express his will again
(hopeless case)
 No prior indication
No absolute obligation to continue his care to prolong his
life - doctor cannot help decide
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Thin Skull Rule
R v. Blaue (Eng CA) [1975]
 D stabbed an 18 year old girl four times when she refused to have sexual intercourse with
him.
 V died after she refused, on religious grounds, to have blood transfusion, even after being
told that if she did not have it she would die.
 D wanted to argue V’s refusal to have blood transfusion constitute NAI, but rejected
 ‘It has long been the policy of the law that those who use violence on other people
must take their victims as they find them. This in our judgment means the whole
man (including her religion beliefs), not just the physical man.’
Coincidence
AR and MR must not only exist, but also ‘coincide’ - Must occur at the same time + relate to the
same subject matter
 D fires his gun at X, intending to kill X i.e. acts with MR for murder [attempted murder]
 But misses X, instead killing V i.e. commits AR of murder [UDA manslaughter]
Transferred Malice
 When MR relates to a particular subject matter (e.g. a specific person); AR involves a
different one
 Still possible to impose by ‘transferring’ the MR from the original subject matter to the
actual subject matter
R v Pembliton
The intended and actual subject matter are different in a substantial way 
(1874)
sets the limit
In the course of a fight D threw a stone at the persons he had been fight with
which missed and broke a window.
Person 
 A particular form of malice required , malicious injury to property (here
property
person)
o Jury found he did not intend to break window: he was reckless of the
consequence (no MR)
 His MR for an offence against the person could not be transferred to a
property offence as they are entirely different offences
 Conviction of CD quashed
R v Latimer
(1886)
D got into a fight in a pub with another man. He took off his belt and hit the
man with the belt. The belt ricocheted off and hit a woman in the face.
 Liable for the injuries inflicted on the woman despite the fact that he did
Man  woman
not intend to harm her.
next to
 Applied TM doctrine – the MR he had to cause harm to the man was
transferred to the woman
A-G’s Reference
The limitations of this doctrine in the context of murder
(No 3 of 1994)
 D stabbed his pregnant gf in the face, abdomen and back when she was 22[1998 HL]
24 weeks pregnant. 17 days after the incident the woman went into
premature labour and gave birth to a live baby. The baby died 121 days later
Mother 
due to the premature birth.
foetus  born
Held:
child
 Reversed CA decision, holding that the doctrine of transferred malice could
not apply
NB: AR satisfied  “There must be some compatibility between the original intention and the
here (unbroken
actual occurrence
chain of
 The intent to stab the mother (a live person) could NOT be transferred to
causation)
the foetus (not a live person), an organism which could not be the victim
of a crime of murder.
 Refused double trasnfer (pregnant woman foetus  born child)
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Coincidence principle
May overcome by
 Viewing conduct as a ‘continuous act’ (Fagan v. MPC (1968)) – a driver recklessly injured
a PO and did nth)
 Viewing conduct as giving rise to a ‘duty’  ‘breach of duty’ (Miller [1983]) – no AR
(ommission)
 Viewing ‘series of acts’ as the relevant conduct
Thabo Meli v R
 They had planned to kill a man and then make it look like an accident.
[1954] (PC)
 They took him to a hut and beat him over the head.
 Believing that he was dead, they then took his body to a cliff and threw
it off.
 Medical evidence showed that the deceased died from exposure of being
left at the bottom of the cliff and not from the blow to the head.
No coincidence – formed the MR, but no AR as the man still alive?
 The act of beating him and throwing him off the cliff was one
continuing act
Per Lord Reid
 Impossible to divide up what was really one transaction
 There is no doubt that D set out to do all these acts in order to achieve
their plan and as parts of their plan;
 + it is much too refined a ground of judgment to say that, because
they were under a misapprehension at one stage and thought that their
guilty purpose and been achieved before in fact it was achieved,
therefore they are to escape the penalties of the law.’
R v Hui Yiu Fai
‘series of acts’ not pursuant to a ‘predetermined plan’
[1993] (CA)
 Provided there is a sufficiently connected series of acts, we cannot
see that it makes any difference whether the murderer disposes of the
body in a manner previously planned or merely in such manner as may
occur to him impromptu and on the spur of the moment.
 The act which rendered the deceased unconscious + dispositve act
which caused the death  series of act
HKSR v Wan
Lapse of time (delay) does not prevent the use of Hui Yiu Fai
Kim Chng (2013)
 Lapse of time does not necessarily break the causal connection between
(CA)
the two acts and prevent them from being viewd as the one transaction
(Thabo)/ sufficiently connected series of acts (Hui Yiu Fai)
 Many reasons why delay in disposing (find the place/ suitable timing)
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General defences
EXEMPTION DEFENCES (no objective standard)
Insanity (CPO s74; real defence or negate AR/ MR; burden on D if raised by D)
*Applicable to all offences (cf. DR - only to murder)
Unfitness to plead (CPO s76)
Insanity (CPO s74)
Time of trial
Time of offence
1) D “did the act or made the omission
1) D did the act or made the omission charged,
charged against him as the offence”; and
2) but was insane as aforesaid at the time when
o Only AR? Antoine [2001]
he did or made the same
o Includes some MR? R v B [2012]
2) D is unfit to plead1
 Trial is barred;
 Jury shall return a special verdict that the
accused person is not guilty by reason of insanity
 instead, the court may impose
(CPO
s76 (cf. Duress/ self-defence – strict acquittal))
various orders like supervision or
hospital order.
 Hospital order (mandatory if the offence carried
a fixed sentence)
 If the condition of D improved, he
 Guardianship order
may be brought to trial again (CPO
schedule 4)
 Supervision order
 Absolute discharge
Raised by P: P (Antoine)
Raised by P: P BRD (Podola)
Raised by D: D on BP
Raised by D: D (Podola)
Raised by judge: BP?: Jimmy Johnson [1983]
M’Naghten’s case [1843] UKHL - Three main essential components
1 Defect of reason Requires proof of actual impairment (non-existing mental capacity) of
D’s powers of ‘reasoning’; mere inadvertence is insufficient
o Who possess the mental capacity and did not exercise VS who did
not possess the mental capacity and did not exercise
Clarke [1972]: absentmindedness is not defect of reason
 Depressive state caused absentmindedness; as a result D forgot to
pay
2 (a) he does not
Refers to the physical nature and quality of the act (not its moral nature)
know the nature
o Codere (1916) / Sullivan [1984]
and quality of his Overlaps with denial of MR and automatism (i.e. denial of voluntariness)
act; OR
– those D also do not know the nature and quality of his act
o if due only to disease of the mind, can ONLY plead insanity;
cannot raise both
e.g. Shoot a
o Sometimes work against D
person, but he
thought he shoot a Policy reason: if raise MR/ automatism  will be strict acquittal
(dangerous e.g. shoot another again, better send him to hospital)
table/ animal
(b) He does not
Legal wrongfulness
know the
o Windle [1952] (UK): “I suppose they will hang me for this.” 
wrongfulness of
he knew it is legally wrong (more restrictive) cf.
his act;
o Stapleton (1952) where HC of Aus held that test may be
satisfied if D did not know that act is ‘morally wrong’
HK approach is not clear, very few people raise this in HK
This scenario, MR possibly can be fulfilled, cf. the first limb
Under both limbs, the test is cognitive 認知, does NOT take into account volitional aspects
意志, e.g. irresistible desires (ability to control) – cf. DR
o Many criticisms of the existing law based on that
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3 **Such a defect of
Definition
reason is from
It is a legal concept, not a medical concept (Sullivan [1984])
disease of the
• Can be even no medical doctor would classify a condition as a
mind (not by other
“mental disease”
causes)
• Not to say doctor opinion irrelevant [just not decisive]
How to distinguish
from simply
denying MR/
automatism
Quick and Paddison [1973]:
• A malfunctioning of the mind caused by disease.
• If caused by some external factor such as violence, drugs,
including anesthetics, alcohol and hypnotic influences cannot
fairly be said to be due to disease  exclude external causes
Bratty [1963], Lord Denning:
• Any mental disorder which has manifested itself in
violence and is prone to recur
Burgess [1991], commenting Bratty:
• Danger of recurrence may be an added reason  but it is not a
necessary requirement (absence of it still psb)
External factor (difficult to draw the distinction [somehow artificial])
External
Quick and
took too much insulin (+ve act) blood sugar level
too low  defect of reason (can raise automatism,
Paddison
strict acquittal)
(1973)
Tang Kwok
Intake of “ice” (the drug)
Wai [2000]
Internal
Sullivan (1984) epilepsy 癲癎症 (quite favorable to D although no
doctor will say it is mental illness)
Burgess (1991) Sleepwalking (raise a lot of criticisms, not deserve to
rule a special verdict and send him to mental
hospital)
Kemp [1957]
• Not restricted to disease of the brain
• arteriosclerosis (hardening of arteries), affected
blood flow to brain
If depression/ stress/ anxiety (internal) caused by divorce (external)?
Hennessy [1989]
 Caused by divorce (external) OR failure to take insulin which led
to high blood sugar level (internal [-ve act])
o Not the kind capable in law of causing or contributing to a
state of automatism. They constitute a state of mind which
is prone to recur (policy reason to restraint such a person).
o They lack the feature of novelty or accident, which is
the basis of the distinction drawn by Lord Diplock in Reg.
v. Sullivan [1984].
^ marital/ divorce lack novelty or accident
Canadian case: Rabey [1980]
• The ordinary stresses and disappointments of life which are the
common lot of mankind NOT external cause.
• = malfunctioning of the mind arising from some cause that is
primarily internal to the accused, having its source in his
psychological or emotional makeup.
• The distinction seems to be based on whether a normal person
would react to the external trigger in a similar manner
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However, if extraordinary event seems psb to be classified as “external”
• T [1990]; rape led to PTSD (some kind of novelty exists)
What if there is an external factor works on the underlying disease of
the mind?
 e.g. I have a mental illness, which would not lead to
unconsciousness unless I have a drink
 Burns (1973): seem D can plead non-insane automatism
What if the disease of the mind is itself caused by external causes
• Did not take any drink at the time of offence, but took too much
when I was young, which made me a mentally ill person
• Cf. Perfectly normal, but took too much alcohol at the time of
offence
– Beard [1920]: D whilst drunk raped 13 yr old girl, he
placed his hand upon her mouth to stop her from
screaming, pressing his thumb on her throat. She died of
suffocation  cannot claim insanity
– Gallagher [1963]: Dutch courage case (drunk alcohol);
intention to kill before drinking
– R v Coley [2013]:
• (Coley) consumption of cannabis (long term)  brief
psychotic episode  not disease of mind, but
voluntary intoxication
• (Harris) alcoholic psychosis caused by sudden
cessation of drinking disease of mind
Automatism (common law; denying AR  no MR; burden on P)
 Criminal liability – even absolute liability, requires a voluntary conduct – voluntariness is
part of AR
 Automatism: denies voluntary conduct (usually the same time denial of MR)
o Effect: strict acquittal
 Burden on P (Normally requires medical evidence (not logically necessary)
o Burgess; Mohammad Hussain [1993]; C [2007]
Definition
 Bratty (1963)
o An involuntary act in this context - “automatism” - means an act which is done by
the muscles without any control by the mind
o Test: “total destruction of voluntary control”
 Insufficient if the control is merely impaired (most of the cases).
o AG’s Ref (no 2 of 1992) [1993]/ R v Chan Tak Kwong [1997]
 What if D was acting under a delusional belief?
o No, Coley [2013]– still have some conscious control (just in response to some
delusional belief)
 Note: Cf. Chalson [1955] – if disease of mind, should raise insanity instead (brain tumour,
blackout & threw his 10yr old son into a river)
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INTOXICATION
General rule (Majewski [1977] and subsequent cases) – Pro-P device
 D cannot rely on evidence of intoxication at the time of offence to negate MR/voluntariness if
the offence is one of basic intent and D was recklessly intoxicated.
 Can convict D in cases where he will be acquitted if normal rules apply
^NB: Intoxication has no significance if the intoxication evidence does not prevent P from
proving MR/ voluntariness (or enable D to raise defences like self-defence/duress)
 D cannot simply defend by claiming that he would not have committed the offence but for the
intoxication. (Have to ask degree of drunkenness such that D has no necessary MR)
 R v Kingston [1994]
o He likes young man (strange sexual desire), good citizen before, the friend put some drug in
his drink  could not control sexual desire on some young boy and being charged
o Effect the drink just impair his control on his sexual desire and impulse (did not amount to
automated), but did not prevent him doing the act voluntarily
 Sexual desire is not direct effect of the alcohol (just let his impulse release)
Specific intent + reckless/ not reckless
intoxication
Basic intent + not reckless intoxication
Basic intent + reckless intoxication
Can rely on the intoxcation evidence
Can rely on the intoxcation evidence
Cannot rely on the intoxcation evidence
Basic intent
Specific intent
Assault/ battery/ ABH/ GBH wo intent/
Murder/ GBH with intent/ Theft/ Burglary/
indecent assault/ rape
Robbery/ Forgery/ Inchoate crimes
Specific intent:
(1) Requires ulterior intent: MR went beyond AR;
e.g. trespass with intent to cause CD/ theft (intentionally to permanently deprive + dishonesty)
- BUT murder
 Cf. Constructive liability/ crime – AR went beyond the MR, some AR cannot find the
corresponding MR (ABH, AR: actually bodily harm, MR: not necessary to have MR to
cause actually bodily harm)
(2) Requires purpose (but purposive intention just one kind of intention [virtual certainty])
*(3) Requires intention (but some think sexual assault in Heard [2007] is wrongly decided)
Involuntary Voluntary but
not reckless
Forced to/ Taking drugs
being laced in bona fide
compliance
with medical
prescription
Voluntary and reckless
Alcohol/drugs commonly known to create states of unpredictability
/ aggression
 Reckless (prior fault)
Other drugs not prescribed by doctors BUT not dangerous (not
known to be aggressive): depends on whether D subjectively reckless
in taking it.
Bailey [1983]: failure to take food after insulin injection need not
be reckless.
• BUT if the accused knows that his actions or inaction are
likely to make him aggressive, unpredictable or
uncontrolled, open to the jury to find that he was reckless.
Hardie [1985]: taking of sedative drugs 鎭靜劑 not nec reckless for
arson
• It may well be that the taking of a sedative or soporific drug
will, in certain circumstances, be no answer, e.g. reckless
driving.
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Three ways of using intoxication:
1. Deny AR/ MR
a. normal Majewski rule
2. Intoxicated belief grant some common law defence (e.g. self defence) – mistakes which do
not negate MR
a. O’Grady Majewski rule extended to cases with specific intent (cannot rely even
specific intent) and modified to more pro-P manner
b. D could not rely on his mistaken belief, even against a charge of murder
c. O’Grady [1987]; O’Connor [1991]; Hatton [2006] (Hard to justify, and severely
criticized by academics, especially Hatton)
3. Intoxicated belief grant statutory defence
a. Modified to more pro-D manner, even reckless can use, no theoretical rationale
behind
b. Jaggard v Dickinson [1981]: Criminal Damage (basic intent) raise the defence of
lawful excuse
Coley [2013] - Drinking withdrawal syndrome (can be count as disease of mind – insanity)
• D (Harris) drank a lot in the past. As a result of the cessation of drinking, D did not foresee
the risk of injury at the time of offence.
Can he use the evidence of reckless drinking to deny MR for a basic intent offence?
• If Majewski rule  reckless intoxication, however this is distinguished, not strictly speaking
drunk at the time of the offence, Majewski rule not applies
• English CA: Yes, as D ‘was not suffering from a direct or acute reaction to the voluntary
taking of intoxicants’ even it is traceable to some reckless intoxication
Dutch courage
• Assuming that he lacked MR of murder/voluntariness at t2 because of his drunkenness.
Applying the above rules of intoxication, since murder is specific intent offence, D must be
acquitted.
•
•
Denning in Gallagher: can be convicted of murder (not simply of reckless drinking, but
some other evil motive as well, not about Majewski rule)
o One view: Denning is simply mistaken. No coincidence. Cannot convict him of
murder
o Another view: the conduct of murder is committed at t1, and the drunken self at t2
was like an innocent agent (Smith & Hogan)
A modification of Majewski rule?? Some said obviously violate the normal Majewski rule,
some rationalize this rule by saying that the intoxication can break the causal relationship
**HK position: essentially follows Majewski (Tang Yuk Wah [2007] – tried to challenge but
case withdrawn)
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NON-EXEMPTION DEFENCES (about reasonable response)
Justification
Society should encourage, should help me
instead of stop me, beneficial to the society
Excuses
Although not good still acceptable, not everyone
like hero, the criminal law makes concessions to
human frailty
Duress
Crime Prevention, Self-defence, Necessity,
Lawful Arrest
General Structure (reasonable in the circumstances)
 D’s belief as to the factual circumstances (fully subjective? Need to be reasonable?)
 D’s reasonable response to those circumstances (fully objective? personal characteristics
taken into account?)
JUSTIFICATION - negates unlawfulness of the use of force
Crime prevention (CPO s101A(1); to a risk of crime commission)
• Statutory basis: CPO s 101A(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.”
• Overlaps with SD, but not co-extensive
• Preventing a non-aggressive crime: e.g. preventing theft
• Preventing an aggression that does not amount to crime: e.g. fending off an attack by
a child < 10
Self-defence (common law; to aggression)
1
Belief as to the
factual
circumstances
(subjective)
The belief can be based on a mistake – as long as honest (i.e. genuine), no
need to be reasonable (the first part is quite lenient)
• E.g. You waved your pen to greet me. I had the honest but
unreasonable mistake that you were waving a knife.
Williams (Gladstone) [1987]
• “D must be judged according to his mistaken view of the facts that
is so whether the mistake was, on an objective view, a reasonable
mistake or not.”
Two exceptions
1) Intoxicated belief: if belief as to the aggression was a result of reckless
intoxication  cannot rely on it even charged with a specific intent offence
like murder (O’Grady [1987]; Hatton [2006], see above intoxication)
• This is a theoretical anomaly contrary to the general rule in
Majewski
2) (a psb one), defending against unlawful arrest.
 Fennell [1971]: if D used force to prevent what he believed to be
an unlawful arrest, D can raise SD only if his belief is true
• How to reconcile it with the general rule (mistaken factual
beliefs can always be taken into account)?
• D’s mistake in Fennell is one about law not about facts
(Blackburn v Bowering [1994]; Lee [2001]; Hewitt [2002])
• Though the distinction may not be easy to draw in
practice.
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2 Reasonableness of
the response
(objective)
Self-defence and insanity
• For SD, judge D on the basis of the state of affairs that D
genuinely believed to exist, even if D’s belief was an insane
delusion: Ibrahim [2014]; Press [2013]
• Is that consistent with the public protection rationale (the
policy concern) of the insanity doctrine? **Child and
Sullivan, “When does the insanity defence apply?”
Owino (1996): The jury must then decide whether the force used
was reasonable in the circumstances as he believed them to be.
• Reasonable: A question of fact for the jury (fact sensitive, no
general principle)
• Not a harsh test: Palmer [1971]
• A person defending himself cannot weigh to a nicety the
exact measure of his necessary defensive action
• If the jury thought that that in a moment of unexpected
anguish a person attacked had only done what he honestly
and instinctively thought necessary  reasonable
What characteristics of D do we take into account?
• Martin (Anthony) [2002] - objective
• Physical characteristics not mental characteristics
• D suffering from psychiatric condition not relevant except in
exceptional circumstances which would make the evidence
especially probative
The idea of “exceptional” is construed narrowly ( insane deluded people
will more easily get acquittal, cannot impose hospital order, cf. first limb
[cause difficulty in application])
• Canns [2005] – paranoid schizophrenic 精神分裂 (not
exceptional)
• Seun Oye (SO) [2013]
• GBH without intent (suddenly attack people)
• D claimed he was being threatened and “rushed” by evil
spirits and had to defend himself
• Police said he ‘may have an acute behavioural disorder’;
witness described him as ‘absolutelely manic’ (not
exceptional)
Note: while psychiatric evidence generally cannot be admitted to show that
D’s response was reasonable given his factual beliefs, it can be admitted in
relation to the issue of what was the factual state of affairs that D
genuinely believed to exist  related to first limb
Opportunity to retreat?
o No ‘duty’ to retreat / duty to demonstrate D does not want to ‘fight’
o But failure to retreat or disengage is relevant in assessing whether
use of force ‘reasonable (or necessity of using force) (Bird)

Pre-emptive strike? (Y)
o Can be reasonable provided that the attack is imminent (Devlin v Armstrong [1971],
AG’s reference (2 of 1983) [1984])
o Beckford [1988]: “A man about to be attacked does not have to wait for his assailant
to strike the first blow or fire the first shot; circumstances may justify a preemptive strike.”
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
Unknown SD: What if V attacking D, but D did not know that and D used force on V because of
other reasons? (N)
Dadson (1850)
o D, a constable, shot at and wounded P who was stealing wood
o Such force was permissible only if it was to prevent a felony, but stealing wood was not a
felony, unless there are two or more prior convictions
o Unknown to D, P had several prior convictions
Held:
o D must be aware of circumstances justifying his use of force
o If circumstances justifying D’s use of force was unknown to D—D cannot later rely on
those circs

What if D was the initial aggressor, V made a wholly disproportionate response against D. Can
D rely SD? (Y)
Burns [1995], approved by Kissel [2010] HKCFA
o Depends on whether the retaliation is such that the accused is entitled then to defend
himself.
• whether the violence offered by V was so out of proportion to the
accused's own [actions] as to give rise to the reasonable apprehension that he was
in an immediate danger from which he had no other means of escape, and
• whether the violence which he then used was no more than was
necessary to preserve his own life or protect himself from serious injury.
DEFENCE OF OTHERS AND DEFENCE OF PROPERTY
• Besides defending himself against V even if V is not committing a crime, D can also defend
his property/others even if V is not committing a crime.
– Re A (Conjoined twins) [2001] – defend of others
– Hussey - defend of properties
• Otherwise the elements of Defence of Others and Defence of Property are similar to those of
Self-defence
Lawful arrest (CPO s101A(1))
Statutory basis: CPO s 101A(1)
• “A person may use such force as is reasonable in the circumstances (*the force has to be
reasonable) 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.”
• If the force used is not reasonable, the person being arrested may use reasonable force to
defence
Burden of proof (Owino)
• Evidential burden: D (but not necessary come from D)
• Legal burden: P
Various legal sources for the power to arrest:
• Statute: CPO s101(2), PFO s50
o CPO s101(2): “Any person may arrest without warrant any person whom he may
reasonably suspect of being guilty of an arrestable offence.”
o Interpretation and General Clauses Ordinance: ’arrestable offence’ = 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.
• Common law: power to arrest and to prevent breach of peace
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Necessity
• Necessity, in judicial cases, is used to refer to two conceptually distinct defences
Justificatory necessity
My act prevented a great evil. It does not
need to be a response to a threat to myself or
persons close to me. The world became a
better place because of my act.
• E.g. Re A (Conjoined Twins)
•
•
Duress of circumstances
my act was an acceptable response to
threats; the act is excused instead of justified
In the past the defence was frequently rejected
However, recent cases suggested that it is a possible, albeit narrow, defence
West Berkshire Health
Authority [1990]
Re A (Conjoined twins)
[2001 UKCA]
Sterilization of mentally disabled V
• according to the doctors, if not sterilization, easily get
pregnant and cause health problem to her, sterilization
for her best interest, BUT not possible to get consent may
amount to battery
If no remove the twins, they will die together. If remove, the
stronger one can survive
Ward LJ (SD):
 The law should recognize choosing the lesser of the two
evils. A “quasi SD” should be available—the situation is
essentially that a baby is killing another in SD of himself
Lord Justice Brookes (Necessity):
 Although for many years we don’t have, the doctrine has
recently been given a new lease of life by Lord Goff of
Chieveley, first in In re F (Mental Patient:
Sterilisation) [1990], and more recently in HL R v
Bournewood [1999]

Distinctions from Dudley & Stephens: No- (i) destined to
death, (ii) prevent others from survival
3 necessary requirements
(i) the act is needed to avoid inevitable and irreparable
evil [death of both twin];
(ii) no more should be done than is reasonably
necessary for the purpose to be achieved;
(iii) the evil inflicted must not be disproportionate to the
evil avoided [the weaker one will die anyway, the
stronger one will have normal life].”
•
Even if there is a defence of necessity, is it applicable to murder?
– Dudley and Stephens [1884] suggested no
 D and S (and others) were shipwrecked in a boat
 To survive D and skilled a young cabin boy (who was near death) and ate his flesh
 Charged with murder
 Held: no such defence [necessity] existed (“…a man has no right to declare
temptation to be an excuse…”)
– Cf. Re A (Conjoined twins): not destined to death
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•
Can necessity be a defence for a doctor who performed euthanasia? Nicklinson [2014]
– 7:2 majority rejected it (assisted murder still an offence, a matter for Parliament to
decide)
EXCUSES - real defence
Duress (common law; *not apply to murder; to threats)
• Effect: strict acquittal
• Legal burden of proof on P
• Restriction: does not apply to murder/attempted murder/some treason [not popular charge
right now] offences (cf. insanity, intoxication)
– This exclusion not appear to apply for conspiracy to murder (Ness [2011])
Duress by threat (simpler kind)
A threat by a person nominating a crime
• E.g. “Beat V or I will beat you”
1
Duress of circumstances (not the flood/ gangsters tell
you that you need to commit crime) - Martin (Colin)
[1989]
E.g. There is a flood so if I don’t drive at this speed I will
be injured by the flood; I am chased by some armed
gangsters so if I don’t drive at this speed I may be
injured by them
• No matter how you call it this is a conceptually
distinct defence from justificatory necessity
Hasan [2005] (the current leading case in
England)
3. No evasive action
1. Impelled to act (~ subjective)
4. Non-association
2. Reasonable response (more objective)
Impelled to act (~ May D have been impelled to act because of (1) a reasonable belief that,
subjective)
if he did not commit the crime, he or persons for (2) whom he is
responsible for will suffer death or serious personal injury?
The crime must be nominated (specified crime) (Cole)
 Not sufficient that D felt the need to commit a crime to meet a
demand for $
 D owed money to a lender, who threatened him and his gf 
committed robbery
 Held: Since the lender did not stipulate D to do robbery, D cannot
rely on duress
The threat must be of a certain nature
• Death/ serious personal injury (not ok if just reduce your
salaries)
o Does not include false imprisonment Dao [2012]
o Rationale: you need to obey law, unless very strong reason
infringing your personal integrity
• The persons who would be harmed, not ok if strangers [although
do moral goods, but not with duress concerns]
– “D or his immediate family or someone close to him
or for whom he is responsible” (Hasan)
Belief as to existence of threat (not entirely subjective)
• The belief has to be reasonable, in addition to honest/genuine
(Hasan) (can rely on mistaken belief, but has to be reasonable)
• E.g. ‘Hey, lets rob the bank tgt. Your wife looks so pretty.’  not
necessarily that he wants to sth nasty to his wife
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2 Reasonable
response (more
objective)
Connection between the belief of the threat and the act
• “Available only when the criminal conduct which it is sought to
excuse has been directly caused by the threats which are relied
upon.” (Hasan)
• However, NO NEED to be the sole cause (ValderramaVega [1985]) [(1) death threat, (2) financial threat, (3)
disclose his homosexuality  only (1) satisfies the
requirement, but if one of the causes OK]
• Cf. even no threat, will still rob anyway
Might a sober person of reasonable firmness, sharing the characteristics
of D, act as D did? [kill all people in HK, otherwise cut your finger,
arguable]
Bowen [1997] (leading but problematic)
• (1) The mere fact that D is more pliable, vulnerable, timid or
susceptible is NOT a characteristic that will be considered
o This of course makes sense  make sure there is some degree
of objectivity
•
(2) D in a category of persons whom the jury may think less
able to resist pressure ( compare the standard of that group)
o Age: young person less robust;
o Sex: women has less moral courage to resist pressure;
o Pregnancy: added fear for the unborn child;
o Serious physical disability: inhibit self protection;
o Recognised mental illness or psychiatric condition, e.g.
PTSD leading to learnt helplessness.
•
(5) Psychiatric evidence MAY BE admissible to show that D is
suffering from some mental illness, mental impairment or
recognised psychiatric condition.
Conditions held to be irrelevant (group characteristics vs individual
vulnerability)
Bowen (1997)
Low IQ (only slightly lower than average people,
unless really low one) that does not amount to a
recognised mental condition
Hegarty
That D was emotionally unstable
[1994]
Horne [1994]
That D was “unusually pliable and vulnerable to
pressure”
Conditions that were ruled to be relevant
Antar [2004]
D had such a low IQ which made D to function at an
impaired level and had “a level of suggestibility
sufficiently higher than that of the general
population”
*D’s self-induced condition would NOT be taken into account: ((4) in
Bowen [1997])
• Use of drugs/alcohol  more vulnerable/ sensitive to threat
(Graham [1982])
• Drug addiction (Flatt [1996])
Policy reason: ~ to intoxication, if you choose to drink, you should bear
the consequence
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3 No evasive action
4 Non-association
Could D have avoided the harm without committing the crime?
• D cannot raise duress if he could evade the harm without
committing the crime (even commit the crime is more convenient)
Hasan made two points
1. It is a different requirement compared to the above two
o Not clear about the rationale, but it tells us the need to discuss
it separately
2. There may be “little if any room to doubt” that D was able to take
evasive action if the harm would not “follow immediately or
almost immediately on his failure to comply with the threat” (can
go to police or other ways)
 Doubted Hudson and Taylor [1971]
o Perjury, tell lies on oath for the D, since otherwise D’s
friends (gangsters) will come after and police cannot
protect
o Duress successfully raised - although Ds were
protected during the trial the danger would have
persisted afterwards.
  Hasan said that the defence cannot be relied on (risk
will not immediately materialized after you
refused)
 Overly indulging? Over-estimate police power? But seems to
be the law
D cannot rely on duress “if as a result of his voluntary association of
known criminals, he foresaw or ought reasonably to have foreseen the
risk of being subjected to any compulsion by threats of violence (to
commit a crime)” (The majority in Hasan)
•
No need ANY PARTICULAR KIND of crime
o ‘raper’ forced you to rob ok  but may not be very justified?
Too wide?
o It is the law, very important to get right kind of friends
If associated with someone not engaged in criminal activity?
 Hasan does not seem to exclude duress in that case but see Ali [2008]
o either a violent nature to the gang or the enterprise which
he has joined
o OR a violent disposition in the person or persons involved
with him in the criminal activity he voluntarily joined
  violent nature of gang already suffice?
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Special defences
Diminished Responsibility (s3 Homicide Ordinance)
 Burden of proof: D on BP (~insanity)
 Consequence: Convicted instead of MS, leaving trial judge sentencing discretion (carrying only
a possible life sentence)
Three elements of DR
1 D was suffering
R v Byrne:
Fact: Sexual psychopath who suffered from perverted violent desires which
from an
abnormality of
is stronger than normal impulse or urge (set aside these addictions, he was
normal person), killed the girl under such an impulse
mind (by jury)
His problem is volitional, not cognitive, just cannot control the physical
action, know the nature and quality + know its morally wrong
Held: Abnormality of mind includes not only M’Naughten Rules in insanity
(lack of knowledge):
1. the perception of physical acts and matters (cognitive), and
2. the ability to form a rational judgment as to right or wrong (cognitive);
*3. the ability to exercise will power to control physical acts in accordance
with that rational judgment (volitional)
→ third limb only available for DR (discretionary), not insanity (acquittal)
Medical evidence no doubt of importance, but not decisive
2 The abnormality
R v Byrne:
of mind must
 Impairment is a matter of degree, should be by jury
substantially
 Medical evidence not decisive (see also Lo Chun Siu)
impair D’s mental Consistent with acting deliberately or consciously: Tang Kin Kwong
responsibility (by Lau Kin Hang (2006 CA): “it would generally be advisable that no such
jury)
direction [in terms of partial insanity or on the borderline of insanity
(which is mentioned in Byrne)] is ever given in a case of DR”
3 The aetiology
Stated set of causes: arising from a condition of arrested/ retarded
development of mind/ any inherent causes/ induced by disease or injury [cf.
(cause) of
not only disease of mind]
abnormality of
mind must fall
within the stated Only one of the causes of the killing would suffice (cf. insanity, require it to
set of causes (by
be the cause): Sanderson (1993)
expert evidence)
A matter of expert evidence (R v Byrne)
Abnormality of mind caused by drug/drinks generally does not satisfy it: Tandy [1988], aware
the above requirements
Drugs/drinks satisfies the causal requirement only in two situations: Tandy; See also Wood [2008];
Stewart (James) [2009], which both cases inherent causes/disease/injury plays a role
1. D was not
intoxicated at the
time of killing.
(Liu Chun Yip
[2006]);
2. D was
intoxicated at the
time of killing.
There is an inherent condition/disease/injury causing the abnormality
(although the inherent condition/disease/injury [brain injury] was, in turn,
caused externally; some remote causes, but does not prevent it being one here).
[Intoxication in the past  brain injury  abnormality of mind now]
The external cause (the drink) was caused by an inherent condition/ disease/
injury.
[Disease [alcoholism]  rendered her taking of the intoxicant involuntary 
abnormality of mind]
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Provocation (loss of self control from anger, s4 Homicide Ordinance)
 Procedural issues
o Once there “is evidence” that D may have been provoked, then provocation must be left to
the jury, even if D doesn’t raise (judge no discretion, as long as there is a chance)
 (Fong Ma-sum [1973]; Chan Ka-shing [1997])
o Burden of Proof: P must disprove BRD (hence the word “might”)
 Consequence: Convicted of MS, leaving trial judge sentencing discretion
Two elements of provocation
1 D was actually
provoked [being
angry]  loss of
self control –
SUBJECTIVE
2 Whether a
reasonable man
MIGHT do as he
did –
OBJECTIVE, if not
sure (not BRD),
succeed
Provocation
 By things said/done: requires human conduct, but
o No need to be wrongful: Baby’s crying: Doughty (1986)
o No need to be done by the victim: Davies [1975]
o No need to be directed at D: Pearson [1992]
 Needs to be sudden and temporary (instinct anger on the spot, cf. a
few days later, this limb too restrictive? [many women cannot succeed
because of this])
o Duffy [1949]:
 “Circs which induce a desire for revenge are inconsistent with
provocation  person has had time to think, to reflect, and this
would negative a sudden temporary loss of self-control, which is
of the essence of provocation.”
o Ngan Lak Kwong [2012 CA]: no if killing is a planned retaliation
 May involve a series of acts or course of conduct, e. g. domestic
violence
o Can look at the broader picture [history], but still need to be sudden
and temporary
 Luc Thiet Thuan [1997]: can use this for provocation, though
relatively unprovocative if taken in isolation, was the last of a
series of acts which finally provoked the loss of self-control by D
Lost self-control
 No need for the loss of self-control to be complete: Richens [1993]
 All evidence abt offender relevant: “evidence of susceptibility to loss of
self-control is admissible to the issue whether control was in fact lost”:
Chung Kei Tung [2004]
 Take into account everything both done and said according to the effect
which, in the jury’s opinion, would have on a reasonable man
 Not simply whether he might lose his self-control, but whether a
reasonable person might lose his self control AND act as D did.
(Liang Yaoqiang [2013])
a) Gravity of provocation (person characteristics might be taken into
account)
 All characteristics of D, including mental infirmity, could be relevant:
Leung Pak Ming (2010)
 Lord Hobhouse in Smith (Morgan) [minority] - under this limb, the
jury must take D as they find him, ‘warts and all’, as Lord Millett
observed.
o E.g. An insult of “you crazy bastard” would be much more
provocative if the audience (D) really has a mental illness
b) Might a reasonable person lose self-control and act as he did
in response to provocation of such gravity (reasonable – normal citizen)
o “Might”, not “would”
o Ho Hoi Shing [2008], Ngan Lak Kwong (2012 CA)
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Whether take into account special characteristics of D?
1. Luc Thiet Thuan (brain damage), Lord Hobhouse. dissenting in
Smith (Morgan) [2000] (depressive order):
o The reasonable person is the person having ordinary power of selfcontrol as someone of the same age and sex of the accused.
o Only age and sex; other characteristics affecting self-control are
irrelevant
2. The majority of Smith (Morgan): mental infirmity affecting
power of self-control should be taken into account, in addition to age
and sex
HK courts always followed Luc (Chung Kei Tung and Ho Hoi Shing)
English Law: Holley [2005 PC]
 Followed Luc and minority in Smith (Morgan)
 Alcoholism / intoxication cannot be taken into account in the objective
test—would a reasonable person act as D did
 Subsequently followed in James & Karimi [2006]
Is it too harsh to people who have mental problems?
 Luc: DR is available (if mental condition), not possible to take into
account all personal characteristics (otherwise all will satisfy), maintain
some extent of objectivitiy
Model Test: Hobhouse’s test (adopted by Lord Hobhouse in Smith (Morgan) (dissenting, but
later followed in Holley))
Actual provocation
 (a) D must have been provoked to lose his self-control and kill.
 (b) This is a factual question upon which all relevant evidence is admissible including any
evidence which tends to support the conclusion that D either may have or did not lose his
self-control.
Gravity
 (c) Jury should then take into account all the evidence, form a view as to the gravity of
the provocation or D in all the circumstances.
Reasonable response
 (d) Having regard to the actual provocation (a and b) and their view as to its gravity (c above),
whether a person having ordinary powers of self-control would have done what D
did."
 Better avoid using ‘reasonable man’ - not assisting the understanding of the criterion
‘ordinary powers of self-control’.
 Better avoid using ‘characteristics’ – to alien to the objective standard of ordinariness.
 Where relevant the age or gender of D should be referred to since they are not factors
which qualify the criterion of ordinariness. It is the standard of ordinary not an
abnormal self-control that has to be used.
If D “induced” the victim to provoke D, can D still raise provocation?
Edwards [1973] (PC,
on appeal from HK)
Johnson [1989] (Eng
CA)
Leung Ka-fai [1992]
(HKCA)
Denied, depends on whether the response by V was predictable or rather
extreme; it is a question of degree
Yes, the defence of provocation should have been left to the jury
Yes, followed Johnson, which is more favorable to the accused than
Edwards
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Daniel v State of
Trinidad and
Tobago [2014 PC]
Yes, should not use Edwards to deny the provocation ground.
 If there is evidence of provocation  just leave to jury
 The more he had himself generated the provocative behaviour, the
less likely it would be that he had lost control and killed as a result
of it (1st limb)/ a reasonable man would have killed in consequence
of it (2nd limb)
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Complicated offence
Extending liability (complicity/ participation) - introduction
BEFORE OR DURING THE CRIME
 S.89 CPO: 'Any person who aids, abets, counsels or procures the commission by another
person of any offence shall be guilty of the **like offence.’
 AACP by individual act/ D2 having joined a common purpose with D1
Principal
Joint principal
Secondary party/
accessories
Committing AR of the alleged offence (Glanville Williams)
Each done part of AR/ all AR (Sze Kwan Lung CFA)
No need mention unless really no AR committed by D2
D2’s liability ‘derives’ from the principal’s liability  generally depends
upon proof P committed the alleged offence
Innocent Agent
No P because cannot prove MR/ not voluntary conduct/ lack of capacity
(child)
R v. Wheelhouse [1994]
 P entered a garage, using a map and a key (dishonestly copied)
provided by D2 and “stolen a car”.
 P believed that the car belongs to D2.
Held: P acquitted because of lack of MR, but D2 who encouraged P would
not be acquitted, instead he would liable as a principal.* no break of
causation
Bourne (1952)
 D, by duress, compelled P (his wife) to have sex with a dog
 D was convicted of abetting P to commit buggery
 P’s MR negated because she was under duress ⇒ innocent agent
‘Procuring the
AR of an offence
with MR of that
offence’
NB: P may simply be acquitted on the evidence (and not able to re-trial), D2
can still be convicted (not applying innocent agent): Hui Chi Ming [1991]
PC (from HKCA)
P not convicted because the lack of MR, even innocent agent, the offence
cannot legally be committed by D2
DPP v. K & B
Fact:
 K & B (two girls) ‘procured’ X to ‘rape’ V, having induced X to believe
V was consenting: + X was not yet 14, bringing presumption of sexual
incapacity into play (now repealed)
 Rape (as then defined): ‘by a male’
Held: liable as a principal for ‘procuring the commission of AR (by
another) with MR’
AACP
Group/ conspiracy not necessary
Must find a P
Actual assistance (can be by omission)
Intention to AACP
Knowledge to essential matters (one of the types)
No FD concept
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AFTER THE CRIME (the statute CREATE the offence)
 s.90, CPO: Assisting or helping after commission of an arrestable offence
 s.91, CPO: Concealing (and false reporting)
AACP by individual act
 A-G's Ref (No. 1 of 1975) (1975) (Eng CA):
o Give each word their ordinary meaning
o There is a difference between each of them because, if there were no such difference,
then [LEGCO] would be wasting time in using four words when two or three would do.
 R v Bryce: their difference far from clear, just catch all
Aiding
Abetting
Counseling
Assistance/ encouragement lost its effect  D2 not liable
Help; assist;  Encouraged, instigated, incited
Executing
 The act of joining a common purpose (Jogee)
common
 Exceptionally P may rely on D’s passive
purpose
encouragement (failure to act) when D has
duty to control P*
Prior/ during
May or may
not
Neither
mental
connection(s
ecretly put
the gun)
nor causal
connection
(did not use
the gun
provided by
him)
During
Before
Present (require
Not present
proof)
Mental connection; meeting of minds;consensus
- P was aware he has the encouragement
from D2 to do the act - Calhaem [1985]
(C ‘hired’ Z to kill V: C convicted for ‘counsel’:
C argued Z’s act not ‘caused’ by her)
 No implication in the word itself that there
should be any causal connection, so long as
(1) contact between the parties (~conspiracy);
(2) a connection between the counseling and the
offence [murder].
(3) Act done was done within the scope of the
authority or advice, not accidentally
Procuring

To cause or ‘produce by
endeavour’
 You procure a thing by
setting out to see that it
happens and taking the
appropriate steps to
produce that happening
 No need conspiracy
Before
May or may not
Causal connection
A-G’s Ref (1/75)
 ‘Causation is important. You
cannot procure an offence
unless there is a causal link
between what you do and the
commission of the offence’
A-G's Ref (No. 1 of 1975)
 Fact: about drinks being ‘laced’, D knew V would drive shortly after, drunk driving afterwards
o The accused surreptitiously laced D’s drink. Where D has no knowledge of what is
happening, he would have no means of preventing the offence from being committed 
the conception of one procuring much stronger
 Falling and in consequence of the [introduction of extra alcohol], D committed
the crime (causation)
 + MR: If BRD D2 knew D1 is going to drive + knew it is the ordinary and natural
result
 D2 should be convicted
o If known to driver - he knows perfectly well how much he has to drink and to a large
extent it is perfectly right and proper to leave him to make his own decision  provision
of tool case (Bainbridge)
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*Participation by inactivity
JF Alford
The company (managing director and transport manager) did nth to
Transport (1997,
prevent its employee from falsifying the records, can be convicted of AA the
Eng CA)
making of false entry on tachograph chart if
 D2 knew their drivers were illegally falsifying the records –
knowledge of the principal offence
 D2 intended to do the act which he knew that the inactivity is capable
to assist or encourage the continuance of practice (driver otherwise
would or might have desisted) – the ability to control of action of
offender (turning blind eye was to keep them happy offer no defence)
 D2 turned a blind eye (deliberate decision to refrain from doing so)
Although some commentary mentioned this as controversial facet of
secondary participation, the principle is enshrined in common law and this
case is a valuable confirmation of it
HKSAR v. Chu Wai
San (2008 CA)
- Very often inactive participator was present, but it is only a matter of
evidence, not law
- Employees were the brains of company  if they were criminally liable,
so was the company (cf. Meridian case in PC)
D2 aware that her company was being used by her husband as a vehicle for
fraud
No MR  not principal, but she failed to exercise control, secondary liable?
 Generally no criminal liability for simply standing by and doing nth
 The law is not clear, sometimes D will be secondarily liable for failing
to control the actions of others, in particular wherein there is a
perceived ability (/duty) to do so
 Passive encouragement if there is specific intent/ willful blindness
*All cases involving the sin of omission are peculiarly fact-sensitive
3. Culpability (MR)
o Subjective culpability : ‘intention’ / ‘knowledge’
o No need to prove D2 had MR of offence; nor even that D2 ‘desired’ commission of
offence
(a) KNOWLEDGE: D2 knew (or ‘believed’) all the ‘essential matters’ which make P’s conduct an
offence (BRD)
 the facts/ consequences/ P’s conduct (the act of committing offence) would exist or occur
 the requisite MR of offence if offence requires proof of mental element (Jogee)
Johnson v Youden
 P offered property for sale in violation of price controls in force at
[1950], adopted by
that time
R v Churchill in
 D2 (solicitors) became aware (knew) of it but still continued to
HL:
assist P to sell
(the law right now)
Held:
 D2 convicted: ‘Before a person can be convicted of AACP, he must
at least know the essential matters which constitute the
offence.
 Need not actually know that an offence has been committed, but
ignorance of the law is not a defence.
 the relevant offence was in his contemplation, rather than knowledge of actual
offence
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R v. Bainbridge
[1960]:
(type: e.g. theft
[robbery/ burglary])
DPP for NI v.
Maxwell [1978
HL]
(range: e.g. serious
offences – GBH/
robbery/ dangerous
weapon)

B assisted P to purchase oxygen-cutting equipment (so as to break into
a bank)
 B claimed he suspected P wanted it for something illegal (like cutting
up stolen property): but claimed he had no idea P was targeting a bank
(not time/ place)
Held:
 Not merely suspicion but knowledge that a crime of the 'type' in
question was intended, no need to be the particular crime
 M, member of ‘terrorist’ org, drove and guided others to a bar; M then
drove home, the org pipe bomb thrown into bar
 M charged with ‘doing act with intent to cause explosion likely to
endanger life’ + with ‘possession of explosives’: clearly, no AR for M
(must be secondary)
Held:
 Sufficient if P’s offence was within 'range' of offences contemplated by
D2 (Jogee)
Lord Hailsham: if D2 is perfectly well aware that he is participating in
one of a limited number of serious crimes within his
contemplation
 think that just applying Bainbridge, bullet, bomb, or incendiary
device, indeed most if not all types of terrorist violence will
constitute the ‘type’
*Lord Scarman: ‘The principle directs attention to what he did have
(subjective) in contemplation. An accessory who leaves it to P to choose,
is liable, provided always the choice is made from the range of
offences from which D2 contemplates the choice will be made.’
 No evidence about D knew the particular type, i.e. doing an act with
intent to cause an explosion of the nature likely to endanger life or
cause serious injury to property
 agrees it goes further than earlier cases, but sound development, no
way inconsistent with them
 Will be = knew P would commit? Sufficient if proved D2 foresaw
offence was ‘very likely’ that they did: no need know the particular
type of offence intended
Lord Fraser: ‘The possible extent of [M’s] guilt was limited to the
range of crimes any of which he must have known were to be
expected that night.’
 Applying Bainbridge, a violent attack of some kind suffice, only if
some crime had no reason to expect, e.g. throwing poison gas, not
sufficient
 recklessness?
Blakely & Sutton
(1991, UK QBD)
Fact: Drunk driving, mistress add vodka to V’s tonic water, planning to tell
V and ask him not to leave, but before that, V drove home, held:
 If either knew or were ‘reckless’ about the facts/ consequences/
P’s conduct would exist or occur [V would drive] (procuring)
 CA rejected because the use of Caldwell recklessness (objective limb
involve, inadvertent recklessness not suffice)
McCullough J: advertent recklessness may suffice to convict some, if not
all; inadvertent recklessness definitely not (suggested by previous
authorities)
Bingham LJ: ‘procure’ import the notion of intention or at least willing
acceptance of a contemplated result (bring about) + cases did not suggest
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R v Bryce (2004)
(contemplation of
real risk of P
committing offence)

B assisted P to commit murder (by taking him and the gun to caravan
which was situated near to V’s home) and argued that he tried to hinder
rather than help
Held (Potter LJ):
 D at the time of doing the act contemplated the commission of the
offence by [P] i.e. he foresaw it as a ‘real or substantial risk’ or
‘real possibility’ (~advertent reckless, foresaw P might commit)
o Easier to establish in the sense that no need to ask P to point out
some crime, some real risk requirement which most of the above
tests inherently incorporated
 Would overlap with MR required for AACP liability based on
participating in JE??
 Foresight only evidence of D2’s intention
 D2’s intention must be the only reasonable inference
(Jogee)
Counter argument to recklessness (Bryce)?
Chu Wai San
Fact: inactivity by wife about her husband’s fraud by her company
Adopted the following distinction drawn by the HCAust in Giorgianni
[2008 HKCA]
(1995):
(specific intent and
willful blindness to
 Specific intent and wilful blindness (deliberate shutting of
essential matters)
one’s eyes to what is going on, is equivalent to knowledge) as
constituting the necessary and requisite intent for accessory, and
 Recklessness and negligence would not suffice
MJ analysis: Seem conflict with Bryce, but in Giorgianni, it appears that
the HCA was referring to ‘knowledge’ of facts which were essential to
commission of offence by P, not to the risk P might commit offence
Giorgianni: D2 only ‘procured’ P to ‘drive dangerously’, if D2 ‘knew’
(or was ‘wilfully blind’) that ‘vehicle was in a dangerous condition’:
‘recklessness’ was insufficient
Chu Wai San: D2 only ‘procured’ if she had known (/ was willfully
blind) what was going on in terms of those fraudulent representations
on the part of her husband
PChau: hard to reconcile, seem relevant to all matters (not only fact, but
also abt P’s act)
(b) INTENTION: D2 intended (D2’s conduct) to AACP P to commit offence (BRD) – R v
Clarkson [1971]
o Knew D2’s conduct was capable to AACP (often if establish this, able to infer)
o AND D2 intended to AACP what P was doing
R v Bryce (2004)
In fact helped commit murder, but said he intended to hinder or obstruct
 Did the act deliberately (not accidentally) realizing the act was
capable of assisting
 When D doing the act intended to assist P (X hinder/ obstruct) in
wt he was doing
o No defence to his unwillingness that the killing should take
place (however great his reluctance, he would have intended
to AA)
Mere presence
Coney (1882)
‘Mere presence’ insufficient to say D2 intended to assist or encourage P
 D2 ‘present’ watching an illegal fight
 Insufficient to infer without actual encouragement
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Allen [1965]
D2 was present (no active words or acts) when a knife fight broke out
 Even if D2 ‘secretly’ intended to assist or encourage, ‘mere presence’
still insufficient
Non-accidental presence
R v Clarkson
Ds present in a room where girl was being raped by other soldiers, Ds were
drunk, conviction quashed, insufficient to infer
(1971)
 ‘Jury might have been left under the impression that it could find
Ds guilty on the basis of their continuing, non-accidental
presence, even though it was not sure [not BRD] that the
necessary inferences to be drawn from the evidence included (i) an
intention to encourage and (ii) actual encouragement.’
 Aware that since Ds were drunk (probably no intention to AACP)

Unforeseen consequence (gravity)
o Not only liable for the ‘intended offence’ (as ‘contemplated’ by D2), but also for any
additional or aggravated offence(s) based simply on the unforeseen consequences
o E.g. contemplates P commit battery, if GBH/ dies  liable for GBH/ MS as well

Note also:
o Strict liability offence: D2's knowledge and intention must also be proved: Callow v
Tillstone (1900)
o Negligence insufficient: Smith v Jenner [1968]
o No vicarious liability: If D2 is an accomplice to P, D3 cannot be vicariously liable for
D2's acts
Joint enterprise
 Group-based liability:
o Constituting the alleged offence ‘pursuant to’ and ‘within the scope of’ a JE with
D2
 Act was foreseen or contemplated as a ‘possible’ consequence of carrying out the
agreement
o By ‘joining’ the enterprise, D2 can be said to have ‘encouraged’ (and thus
aided/counselled) P to commit the offence: bringing D2 within s.89
R v. Anderson, R v.
Morris [1966] Eng
CA
R v. Chan Wing-siu
(1985) HK PC

A+M set out to beat up V: while M watched, A took out knife and
fatally stabbed V
 On appeal: M said did not know A had a knife (contemplation
of the use of knife): use of knife was ‘unexpected’ : went ‘beyond’ JE
Held (Lord Parker CJ):
 Eng CA agreed and quashed M’s conviction of MS
 P needs to prove BRD:
o JE and D2 ‘joined’ the JE + ‘Acts [by P] done in pursuance of JE’
 If one of the adventurers goes beyond what has been tacitly agreed,
not liable
 Death caused by stabbing, but stabbing not pursuant to JE (D2
never authorized with intent)  D2 did not AACP
 Three Ds took part, during robbery, V was stabbed to death - two Ds
in room with V - third D in room with V’s wife - all three had knives
 Prosecution could not prove which of two Ds in room with V fatally
stabbed V : so relied on JE principle + ‘it must have been one of
them’
Held:
 On appeal argue that murder requires proof of ‘intention’, so also
should JE doctrine?
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
PC rejected need for ‘intention’: Sir Robin Cooke
o ‘This principle turns on contemplation or, authorisation, which
may be expressed but is more usually implied. The criminal
culpability lies in participating in a venture with that foresight
(not intent).’
 PC rejected argument that wrong to convict D2 for ‘contemplating’
(or foreseeing) murder as a ‘possible incident’, when P must have at
least ‘intended’ GBH
o HL’s did likewise in Powell, English [1999]:
The strong
 practical and policy consideration; utility of
policy reason
accessory principle would be gravely undermined
behind  less

Rules of common law are not based solely on logic but
stringent
relate to practical concerns, in relation to JE, to the
need to give effective protection to the public against
criminals operating in gangs.
o ‘ if foreseeability of death or GBH is not sufficient to constitute
MR for murder (principal), it is sufficient to constitute MR for an
accessory.
This ‘anomaly’ has been constitutionally challenged in HK, but
challenge rejected (HKSAR v. Pun Ganga Chandra [2001])
 Pun was convicted of murder on JE basis: life sentence
 Argued that ‘anomalous’ JE doctrine was ‘arbitrary’, and thus
inconsistent with Art 5(1) BORO and Art 28 BL
 CA held: not arbitrary : not an infringement of Art. 5(1) /Art. 28
Elements of JE (for P to prove BRD)
1. JE (a group) [to commit X] and D2 ‘joined’ the JE [by ‘agreeing’ to commit X]
2. ‘Acts (offence Y) done by P ‘in pursuance of the JE’
3. D2 ‘contemplated’ (foresaw) such ‘acts’ as a ‘possible incident of the common unlawful
enterprise’
 No need ‘intended’/ ‘share purpose’
4. FD difference in manner
5. D2 ‘continued to participate’
Note:
 JE liability does not depend on D2's presence when P commits acts: Stally [1960]; Rook
[1993]
 Acquittal of all: in a JE case, if prosecution can neither prove who was P, nor that ‘it must
have been one of them’, then all must be acquitted of that offence: R v Aston & Mason
(1992)
1 JE to commit
1. Two people (parties)
X and
2. ‘Common unlawful purpose’: offence in mind (must be of particularity,
D2 joined the
but no need to be very precise, just share the desire [at least some
JE by
overlapping purpose], no need to be on the spot)
3. Joined by ‘agreeing’
‘agreeing’
 May arise spontaneously (e.g. group attack), not only planned
Mere presence not suffice D2 ‘joined’/ ‘participated’: Lau Sik-chung
[1982]
D2 outwardly ‘agreed’, but only ‘pretended’ to agree? (eg. undercover police)
 Hung Man-chit [1996] HKCA:
o Not sufficient to prove that D2 pretended to go along with JE nor he
did sth which made others think that he was going along with the plan
and that they could rely upon his assistance, if in fact his actions were
intended to frustrate the plan.
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2
3
‘Acts (offence
Y) done by P
‘in pursuance
of the JE’ (to
commit
offence X)
1. ‘Acts’ =constitutive elements of offence committed: Chan Wing-siu
[1985 PC]: a crime foreseen (includes both AR + MR elements of
alleged offence)
a. ^But AR as to consequence no need (liable for unforeseen
consequence, e.g. death)
2. The act must be done by one of them/ by P
3. Requires to prove P committed the relevant ‘acts’ (constituting offence Y
by P) while furthering the common purpose (ie. the ‘agreement’ to
commit offence X) and not by way of an ‘intentional deviation’
a. ie. D2 not liable simply because D2 contemplated that P ‘might
commit offence Y’: only if D2 ‘contemplated’ P might commit offence
Y as a ‘psb incident of the CUP’
^eg. while committing robbery, P sees V, a hated enemy (always
want to kill him by P secretly, nth to do with the robbery), outside
the window, and fatally shoots V
‘Contemplated’ Chan Wing-siu [1985 PC], Sir Robin Cooke :
(foresaw) such ‘Contemplation: a crime foreseen as a psb incident/ real risk of CUE’ (might
‘acts’ (Y) as a
happen, nth more than contemplation, ~ recklessness, Bryce in AACP?)
‘possible
 Subjective test (what he did foreseen)
incident of JE’
o Not sufficient if D2 never contemplated nor foresight too remote
(merely cross their mind but dismiss as negligible)
[level of harm  That further offence NO NEED to be ‘intended’ or a ‘shared purpose’
contemplated]
* if knew lethal weapons (similarly dangerous), e.g. knife or loaded gun,
were to be carried on a criminal expedition, likely expected GBH and in the
same manner
Hui Chi-ming [1991 PC]: Test is based on ‘contemplation’, not
‘authorisation’ (> ‘tacitly approval’)
 The word ‘authorisation’ used in Chan Wingsiu explains what is meant by
contemplation ( mere foresight not sufficient, need to be psb incident),
but not adding a new ingredient
4
FD difference
in manner
[D should not
be liable when
P makes a
unilateral
switch to
unforeseen
conduct]
Rahman [2008 HL] per Lord Brown
 Affirmed the contemplation test, but re-formulated the core test
 ‘If [D2] realises (without agreeing to such conduct being used) that [P]
may kill or intentionally inflict serious injury, but nevertheless continues
to participate with [P] in the venture, that will amount to a sufficient
mental element for [D2] to be guilty of murder if [P], with the requisite
intent, kills in the course of the venture’
R v Powell, R v English (1999 HL)
 Powell: unable to prove which of the 3 fired gun, but knew it is one of
them
 English: Attack and cause injury with wooden posts, but don’t know
there is a knife
 Liable unless a FD nature (Affirmed by Rahman and Smith & Hogan)
*If CUP is to kill, FD does not matter (Rahman (2008 HL))
Unforeseen use of weapon
 Anderson & Morris/ R v English: lead to acquittal to murder + MS
 How does this apply to spontaneous attacks?
o (v) first become aware of weapon during attack, if participate or
continue to participate in the attack  guilty of murder: Uddin
(1999 CA)
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o HKSAR v Pun Ganga Chandra (no.2) (2001)
 Whether possibility arose on the facts? (what if relatively
brief period)
 Key issue: did D2 continue to participate
Different weapon used
 English: If it is ‘more lethal’/ ‘more dangerous’: knife > wooden post;
gun = knife (mentioned Gamble in the case  create case-specific
flexibility)
 Rahman (2008 HL): reconfirmed ‘more lethal’: *ONLY nature of
weapon used relevant, but manner of use NOT– restrictive approach
(JB: better not apply in HK, unnecessary and unfortunate move,
drastically reduce the flexibility built in previous cases)
 R v. Yemoh [2010 CA]: both were ‘lethal weapons’, despite inherent
difference (large knife capable of stabbing, Stanley knife only of slashing)
 R v Mendez [2010 CA]: FD direction – the use of weapon is unforeseen
OR likely to be altogether more life-threatening
o nature + manner [how to use] + consequence [degree of injury]
(JB: use this)
Change of intention of killer
 Rahman (2008 HL): For murder, change in intention of killer, from
‘intention to cause GBH’ to ‘intention to kill’ cannot amount to ‘FD’ (both
intent suffice for murder)
o ^ change of intention only make D2 liable for a different offence (e.g.
intent to cause some harm [battery]  intent to cause GBH) (JB
doubted this as well)
Case (*CUP
intention to
GBH, not to
kill)
English
G v Gamble
(doubted in
Rahman)
D’s
Actually
contemplation happening
Held (blunt weapon?
compare the type of
injury [open wound?])
Wooden post
Kneecapping
with a gun
FD (nature)
FD (*diff body parts)
Rahman
Knife
Intention to
GBH
Yemoh
Stabbing
Cutting throat
with a knife/
Maybe shooting
in other parts
Gun
Intention to kill
Stanley (small) large knife
- Stabbing
knife
- Slashing could be used to
stab, albeit not
very deeply and
efficiently
Not sure
Not FD (nature)
- Equally dangerous
Rejected
- but in fact very clever
argument [why
wooden vs stabbing 
since more dangerous
 kill more dangerous
than GBH]
Not FD (nature)
- Despite inherent
difference, both are
lethal weapons
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HK different position? But note still follow UK that time Szeto Kwok-hei
[1991] (HKCA):
 Provided that A contemplates that such harm might be inflicted, he
is guilty of murder if B uses such violence on the victim that causes
his death.
 Irrelevant in fact B uses some other weapon or means + A does not
consider what specific weapon or means
Edmunds [2011 NZSC]: FD not helpful and arbitrary test, encourages
attempts to make unmeritorious (perhaps faintly ludicrous) distinctions
What if ‘use of knife’ not completely unforeseen, but use it to frighten or
wound?  MS
 Reid (1976): using weapon to cause fear  cause injury, D2 guilty of MS
o R v Roberts [2001]; R v Yemoh [2010] adopted
 R v Mendez (2010): Reid no longer to be the law in UK (because of
Powell/ English/ Anderson & Morris)
 R v Carpenter (Tracy) [2011]: D1: Tracy’s son; D2: Mother  fight
between two families, the parents did not stop him;
o Knew carrying knife (use of knife is foreseen), did not foresee to cause
GBH  MS, rejected Mendez
Accidental victim?
 P and D2 have JE to kill X but accidentally kills V (acts under JE)
 ‘Transferred malice’ doctrine applies, making P liable for murdering V:
and D2 will also be liable for murder of V

R v. Gnango (2011) (HL)
But treated it with caution, not fit the fact directly
o Involved a shoot-out between P and D2: each was trying to ‘kill’
the other, BUT NOT a ‘JE to kill’
o They did share a CUP to kill, but one wants to kill X/ one wants
to kill Y
o The court wants to convict D2 who firing shots wildly in the car
park (however the doctrine would suggest that D2 would be
acquitted)
o  seems wrong, the court ‘ignored’ the doctrine, ‘hard
case bad law’
 Some held that D2 was principal (even though did not fire the shot
which ‘killed’ V)
 Others found a JE to commit some other offence (e.g. affray):
during which P committed ‘murder’ (which was contemplated as a
possible incident of JE by D2)
Commentary towards FD (CMV Clarkson):
Over-inclusiveness
 P guilty of murder only if he intended to kill or cause GBH VS D2
may be liable might have regarded death as a psb incident
 As Powell/ English mentioned, justified by the policy reason
about the dangerousness of collaborative ventures and group
violence?  valid policy reason but why cannot MS instead of
murder?
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
5
D2 ‘continued
to participate’
Although it is not recklessness as to the result (death), but to
whether P will muder, still a species of recklessness which is
traditionally regarded as the territory of MS
Under-inclusiveness
 Why FD will lead to acquittal (why refusal to consider MS as
alternative)? – simply sth he was not responsible?
 E.g. use wooden post but with intent to kill, he can escape liability
(why the method makes such a huge difference, UK law has long
regarded the mode of execution of crimes of violence as irrelevant)
 Different in weapon may be highly significant in evidential terms 
if gun, more likely to foresaw murder
 HL has failed to understand the importance of calibrating liability to
match culpability
‘Criminal culpability lies in participating in JE with that foresight.’ (Chan
Wing-siu [1985 PC])
 No need for ‘active’ participation (including ‘mastermind’ who gets
other to carry out)
 ‘Continuing to participate’ essentially means ‘remaining’ a party after
contemplating ‘acts’ (when D2 saw P picking up the knife)
o Unless D2 withdraws
o If expresses dissent? (*look withdrawal/ disassociation part)
WITHDRAWAL/ DISASSOCIATION FROM P’ S CONDUCT/ JE
Whitefield
 D2 agreed with P to commit burglary on his neighbour’s flat.
(1983)
 He later changed his mind.
 He informed P he did not wish to go and refused to him to go into the flat
 Held:
o Unequivocal notice = “if you proceeds, you will not get my help”
o D2 has served unequivocal notice ⇒ acquittal
 Cf. Becarra (1976)
HKSAR v. Lee
 A change of heart by D2 coupled with steps to withdraw from
Kwan Kong &
participation
Ors (2006 CA)
 What is required will vary from case to case (depend on how imminent the
completed offence is at the time of the attempted withdrawal + the nature of
assistance and encouragement already given.’)
**HKSAR v.
 “unequivocal withdrawal”: depend on facts
Chu Yiu Keung
 Where the incident arises spontaneously,
[2011 CA]
o it may not be “practicable and reasonable” in the mayhem and
immediacy of the moment for a person to communicate to others
Provide a
o  Clear demonstration - by actions of a different kind.
summary of the  If a planned revenge attack,
previous cases
o It was practicable and reasonable in the circumstance to
communicate
o  a timely communication of the intention to abandon the
common purpose given to those who were determined to continue
with it.
 Nature of communication per Sloan JA in Whitehouse: it will serve
unequivocal notice upon others in JE that if he proceeds upon it he does so
w/o the further aid and assistance of those who withdraw.
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D2 MAY (EXCEPTIONALLY ) BE GUILTY OF A GREATER OFFENCE THAN P
Richards [1973]  D (wife) instructed P1 and P2 to beat up her husband “bad enough to put
Eng CA
him in a hospital for a month”
 P1 and P2 inflicted a wound to V (not GBH)
Held:
 D convicted of wounding with intent to cause GBH
 P1 and P2 only convicted of unlawful wounding
Howe [1987]
Where D2 intended P’s act, which D2 procured, to cause death (whereas P did
HL
not so intend to cause death)
 P killed V
 D2 intended the result of V’s death
 P is only convicted of MS because of special reasons
 D2 still convicted of murder
 Doctrinally arguable, but adopted in HK
Exceptionally, D2 may avoid conviction because legislation creating offence is intended to
‘protect’ D2: ‘intended victim’ (usually involved sexual offences – injury kind of case)
 Tyrrell [1894]
o Girl under 16 not liable for AA another to have unlawful sexual intercourse with
her (consent, aided and participated in some sense?)
o  Subsequent cases: apply this only if within particular class of people
 R v Whitehouse [1977]
o W charged with inciting his 15 yo daughter to commit incest with him
o Being 15 yo, she could not be a principal (16 yo can)
o Falling into the category which the law protects, she could not be a accessory
o W not liable for inciting her to commit incest
 But there are limits to this ‘rule’: R v. Gnango [2011]
o P and D2 involved in a gun fight, exchanged fire and shot V
o D2 convicted as a secondary party to murder
o Although D2 is the “victim”, the statute does not preclude D2’s conviction
(intended to protect the public, public order, not specific group of people)
Inchoate liability
Criminal liability for preparatory conduct done with the ‘intention’ of committing a
‘substantive’ offence
Justification:
 Permits lawful arrest – crime prevention (don’t need to wait it has been done)
o Problems: what you going to punish them for?
 Permits punishment of morally culpable individuals who promote, combine to pursue or
actually create risk of crime
o Not just stop you and prevent you commit the crime, can punish you in some way
 (For conspiracies only) additional weapon against combinations of subversive / criminal
individuals
It is in fact complete offence (NOT INCOMPLETE OFFENCE)
 Each inchoate offence requires proof of AR (ie. relevant preparatory conduct) and MR
 Subsequent decision not to commit intended substantive offence does NOT affect liability
for the inchoate offence, though may be relevant to sentencing
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Incitement
Encouraging a crime
Common law
Almost all offences
Express countermanding of
incitement
AACP  incite
Incite  incite (/conspire /
attempt)
S101I CPO
No penalty is otherwise
provided for such incitement,
he shall be liable to be
sentenced to that maximum
penalty (usually lesser)
•
•
Conspiracy
‘agreeing’ to commit a crime
**There must be 2 persons
Originally common law
Statutory since 1996: s.159A,
CO
Any offence triable in HK
(include AACP/ inchoate
liability)
Withdrawing from conspiracy
Attempt
trying to commit a crime
(maybe tried and failed)
Originally common law
Statutory since 1996: s.159G,
CO
Any offence triable in HK other
than AACP
AACP  conspiracy
Conspiracy  AACP (?)
Conspiracy to  incite /
attempt
S159C CO
 Murder – life
imprisonment
 Other offence – maximum
penalty of the substantive
offence
 Conspiracy to defraud –14
years
AACP  attempt
Abandoning attempt
Attempt  incite/ conspire
S159G CO
 Murder/ other mandatory
life sentence - on conviction
on indictment to life
imprisonment
 Indictable - on conviction
on indictment
 On indictment or
summarily – on summary
conviction
Specific substantive offence must be identified [eg. murder, theft, rape]
o Substantive offence: complete in itself and is not dependent on another crime for one of
its elements
Sometimes can convict D of inchoate offence even if substantive offence not successfully
completed – esp. conspiracy
o Procedural advantage, even the agreement was successfully carried out, only one charge
Secondary liability
Separate MR
Substantive offence must be committed
Inchoate liability
MR of the offence
Usually the substantive offence haven’t
committed
Possible - AACP  Incite/ Conspire/ Attempt ( substantive offence)
Impossible - Incite/ Conspire/ Attempt  AACP (arguably not substantive offence)
Incitement
AR: Requires ‘inciter’ to ‘incite’ ‘incitee’ to commit
(1) Inciter incite
 Urge/ influence another to commit
 Can by suggestion/ encouragement/ persuasion/ pressurizing/ threats/ blackmail/
bribery
Invicta Plastics
Company was charged with ‘inciting’ illegal use of radar detectors
(1976)
(where police speed cameras are) by:
(1) advertising them (in magazine)
Suggestion/
(2) issuing leaflet about them
encouragement/ The company argued that the magazine advertisement simply
persuasion
encourage people to find out the device, not to use it.
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Rece Relations v
Applin (1973):
Pressurizing,
threats,
blackmail or
bribery
R v. Marlow
[1997]
Held: should ‘look at as a whole’ (also the pamphlet content,
despite the ‘disclaimer’)
 ‘it is plain from the words used [that] readers were being
persuaded and incited to use the Radatec device.’
* company was prosecuted: corporate liability
* company director was also prosecuted [vicarious liability] (acquitted
since company liable for ‘incitement’, NOT ‘an offence under this Act’)
Foster parents took in both white and coloured children; Applin (and
others, neighbor) brought pressure on FPs to take only white children
Ds charged with ‘inciting’ racial hatred
 Ld Denning: pressure could constitute incitement
Author of a book on the cultivation and production of cannabis, 500
copies were sold and several customers followed
 Encouragement that contains an element of persuasion certainly
suffice
 No need to prove anyone was in fact incited or
persuaded
 If capable of persuading, and it is published with the purpose of
persuading  ok
How about purchasers (incite supplies to supply them with illicit products)?
Goldman (2001):
G convicted of attempting to incite another to distribute child
pornography
 G wrote to overseas co. advertising porn videos to ask if there are
any tapes showing girls aged 7-13
 CA dismissed appeal: D’s offer to buy indecent photographs
was not mere response to offer, but also amounted to a
suggestion, proposal, persuasion or inducement ‘to
supply’
Comment:
 Usual case it is the inciter who takes the initiative, he who puts
the idea into the head of the incite
 In this case, even the initiative was taken by the alleged
incitee (~ invite D to incite him to commit a crime)  simply
D respond positively OK
 It did extend the law but may with justifiable revelation
 *Attempt in incite if the letter (communication) was not
received
(2) to incitee
Incitement must be communicated to ‘incitee’
 eg. unsent letter/email
 If uncommunicated: may possibly amount to an ‘attempt to incite’
o Need not have any proven effect on incitee
o Mere assistance?
Incitee need not be specific individual
 May address the world (those whoever received it)
o Invicta Plastics (1976)
 If communicate to a computer (request goods, transaction carried out immediately?)
o Processed by a computer instruction (but recipient is a computer not a person)
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o But may still say D incited ‘a person’, if there is actual communication with a
person
R v. Coventry
Although the transaction process was wholly automated by means of
Magistrates’
computer, the business operation was operated by human beings (inciting
Court [2004
someone, those lying behind the onus of the company)
UKCA]
Comment: highly problematic
 On one hand can rely Spiby because it did not involve human mind,
on the other hand can still pursue incitement that requires
communication with person
 No evidence the owner personally received the request, or the
programmer??
 This case may be justified by the fact that owners produced biweekly updates to their website, which provides evidence that they
were actively responding to the communications, maintaining the
service
(3) to commit an ‘offence’
Prima facie, any offence can be incited, but some limitations may exist:
 R v Whitehouse (1977)
o W charged with inciting his 15 yo daughter to commit incest with him
o Being 15 yo, she could not be a principal
o Falling into the category which the law protects, she could not be a accessory
o Held: W not liable for inciting her to commit incest (must amount to an offence
[legally impossible])
 Curr [1968] (The offence incited may be a summary or an indictable offence)
 Shephard [1919] (cf Tyrell [1894] – age under 16 sex)
o Man encouraged a woman to kill a child after it was born
o At the time of act of incitement to take the steps, the child is not yet born
o The conduct incited need not be capable of immediate performance
MR: ‘intended’
 Prosecution must prove BRD D ‘intended’ incitee ‘would commit the offence incited’
(1) D intended to communicate with another person (incitee)
Eg. accidentally send email, just like to write? Did not intend to send the email, NO
(2) D ‘intended’ incitee will ‘perform AR [of substantive offence] with the necessary MR
[of that offence]’
Eg. ‘theft’ - D must ‘intend’ incite will dishonestly/ appropriate/ property belonging to
another/ with intention to PD other
MR as to
conduct
MR as to
circ
MR as to
consq
MR as to
P’s mens
rea
D intended X to perform any conduct specified in the offence
D knew or believed the presence of all circumstances which are
required to make P=X’s conduct amount to that particular offence
D intended X’s conduct to cause any required consequence
D knew or believed that X will have any required MR
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Conspiracy (s.159A, CO)
1. ‘Agreement’:
‘A person’
‘Agrees’
Does not include intended victims, s.159B(1)
(1). Requires actual agreement, a common purpose
(2). Must go beyond negotiations but need not extend to contractual detail
(3). Mere knowledge by D of A’s criminal purpose does not of itself
sufficient, though a necessary prerequisite for an agreement
(4). Involves both conduct of D expressing (eg. words) or establishing (eg.
nod of head) D’s ‘agreement’ + D’s ‘intention to agree’

‘with any
other
person’
‘... a person agrees with any other person’


Misunderstanding between D and A as to what is agreed:
o If D misunderstand A’s intention  no agreement  no conspiracy
o D and A agreed to do theft + unknown to D, A intended to use force
 D guilty of conspiracy to commit theft, A guilty of robbery /
conspiracy to commit robbery (?)
o Misunderstanding of details  still liable
At least 2 people
May include ‘person(s) unknown’
NOT sufficient if ‘only other person’ is:
 S.159B(2) :
o D’s spouse
o Children under age of criminal responsibility [s.159B(3): those
stated in JOO s3]
o Intended victim of the offence
 Persons of unsound mind
 Generally, undercover police agents (pretending): Yip Chiu-cheung
[1995] PC
Reg v Anderson (1986 HL)
o ‘Undercover agents may pretend to join, with no intention of taking
any part in the planned crime but rather with the intention of
providing information that will frustrate it.
o An undercover agent who has no intention of committing the
crime lacks the necessary MR to be a conspirator.’
2. ‘Course of conduct’: ‘... a course of conduct shall be pursued ...’
Couse of
conduct

Shall be
pursued


‘A broad view of ‘course of conduct’ may be taken, incorporating
o not only the physical acts intended
o but also any consequences and circumstances intended to
occur or exist.’
D and at least one other party must have an intention that the agreed
course of conduct will be carried out
Yip Chiu-cheung [1995]
o ‘Facts of the present case are quite different [cf. undercover officer
pretending to join]
o Nobody can doubt the Needham was acting courageously and with
the best of motives; he was trying to break a drug ring.
o But equally there can be no doubt that the method he chose and in
which the police in HK acquiesced involved the commission of the
criminal offence of trafficking in drugs by exporting heroin from HK
without a licence.
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o Needham intended to commit that offence to be carried out.
o The authorities turn a blind eye not prosecute them does not prevent
it from being a criminal offence
3. ‘Intended offence’: ‘if the agreement is carried out in accordance with their
intentions’
‘if the agreement is carried out in accordance with their intentions ...’ (common purpose is to
carry out the agreed ‘course of conduct’)
‘either (a) will necessarily amount to or involve the commission of any offence or offences by
one or more of the parties to the agreement ...’
Necessarily Not ‘might’ or even ‘probably will’
amount to
‘Conditional’ agreement may still amount to a conspiracy
involve
 eg. C1 and C2 ‘agree’ they will do X (amounting to or involving an offence)
[but only] if certain circumstances arise
 HLs in Saik agreed that conditional agreements can amount to a
conspiracy
o Lord Nicholls: ‘The question always is whether the agreed
course of conduct, if carried out in accordance with the
parties’ intentions, would necessarily involve an offence. A
conspiracy to rob a bank tomorrow if the coast is clear when the
conspirators reach the bank is not, by reason of this qualification, any
less a conspiracy to rob.’
Reed (discussion only)
 A and B agreed to drive from London to Edinburgh in a time which
can be achieved without breaking the speed limit
 BUT: traffic jam, A and B exceeded speed limit
 Result: not necessarily involve offence  no conspiracy
Jackson
 Agreement: if D3 be convicted at his trial for burglary, in order to
gain sympathy, D3 would be shot at the leg
 Held: necessarily involve offence  conspiracy to pervert the
course of justice
Commission s.159A(3): ‘any offence triable in HK ...’
of any
 In HK this appears to include
offence
o Conspiracy to AACP an offence
o Conspiracy to incite, to attempt (appear to include, cf. UK Criminal Law
Act 1977)
Intended crime must take place in HK
 Insufficient if agent only to do acts outside HK
o HKSAR v. Kreiger (2013 CA): agt in HK to commit acts of bribery
outside HK (could not even the agreement took place in HK)
 Or have intended effect in HK
o eg. conspiracy to defraud affecting business in HK
 But no need for overt acts in HK:
o Somchai Liangsiriprasert [1990] PC
 Conspiracy to import drug to US from Thai (agreement and
payment in Thai), meet in HK to collect the proceeds of sales
in US
 sufficient even if no overt act pursuant to the
conspiracy has yet occurred in HK
 The only purpose of looking for an overt act is to establish the
link between the conspiracy and the place OR possibly to
show the conspiracy is continuing
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Agreement
made in:
HK
Criminal act
intended to be
carried out in:
Abroad
Abroad
HK
Offence triable in HK?
 No (HKSAR v. Kreiger)
 YES, if murder (s. 5 OAPO, disregard
CJO rules)
 YES
 Whether committed or not commited
in HK, i.e. no need overt act in HK
(Somchai)
Rules under CJO
 D is guilty for conspiracy to commit Group A offence /
conspiracy to defraud in Hong Kong
o Whether (1) he became a party to conspiracy in HK or (2) any
“relevant event” occurred in HK (s.4(2), same as Somchai)
o Whatever his citizenship or nationality, whether HKPR, (2)
whether in HK at such time (s.4(1))
By one or
 Not necessarily by every party
more of the
 Not necessarily by D
parties
HKSAR v. Cheung Sing Chi [2004] (HKCA)
o R v Anderson: play some part in the agreed course of conduct
o Siracusa: participation can be active or passive (correct one after
Anderson)
o Participation of at least one of the conspirators in the actual course
of conduct OK
HKSAR v. Poon Chun Kit [2007] (HKCA)
o ‘Nowhere in [s.159A] is there any requirement that a person himself
intend to participate in any particular aspect of the agreed course of
conduct. ... As a matter of law, it is not necessary for every
conspirator to play an active part.’
or *(b) would do so but for the existence of facts which render the commission of the offence
or any of the offences impossible
 agreement to murder V : V is already dead
 agreement to import DD : not DD
Note: at common law, ‘factual impossibility’ (sometimes) prevented liability for conspiracy
In
 If intended offence is a strict liability offence,
accordance
o s.159A(1) requires proof Ds ‘knew’ that facts or circumstances
with their
making conduct an offence ‘will exist’
intentions
 Before common law: Churchill v Walton [1967](HL)
 *Now: s.159A(2): ‘not be guilty of conspiracy ... unless he and at least one
other party to the agreement intend or know that that fact or
circumstance shall or will exist at the time when the conduct constituting
the offence is to take place’
What if mistaken belief? Does ‘intend or know’ in s.159A(2) include ‘belief ’?
 R v. Saik [2006] UKHL
o Offence: convert banking notes for the purpose of assisting another
to avoid prosecution, knowing or having reasonable grounds to
suspect that such property represented another’s proceeds of
criminal conduct
o Held: mistaken belief that the property amounted to proceeds of
another does not constitute knowledge. So no conspiracy.
o Referred to in Poon Chun Kit
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Attempt (s159G)
After Statutory, s 159G(1) CO
1. *MR : ‘Intending to commit an offence’
‘Offence’
‘Intending’
‘an offence to which this section applies’: s.159G(5)
 ‘This section applies to any offence which, if it were completed, would
be triable in HK other than AACP the commission of an offence.’
 Exception: AACP per se is an offence
Applied in HKSAR v. Ip Shui Kwan [2003] to attempted infanticide – but
cannot charge attempted manslaughter?
Prima facie, ‘intending’ requires prosecution to prove BRD (ALL ‘intention’ or
‘knowledge’?):
(1). ‘Intention’ to do the act that is more than merely preparatory (conduct)
(2). ‘Intention’ that any circumstances should exist
(3). ‘Intention’ to bring about any consequence(s) required for
commission of the substantive offence
(4). Any ‘ulterior intent’ required for commission of substantive offence
‘Intending’ consequence
 Note: murder : requires proof of death
 ‘attempted murder’ requires proof D intended to bring about V’s death :
ie. requires proof D acted with ‘intention to kill’
‘Intending’ circumstances
 If substantive offence includes circumstances, and recklessness (as
to those circumstances) suffices as MR for the substantive offence
  ‘recklessness’ (as to circumstances) is also sufficient for the
attempt
Khan [1990] (Eng CA)
 Attempted rape
 Rape:
o AR requires proof of circumstance: ‘lack of consent’
o MR: ‘knowing or being reckless’
 Russell LJ:
o ‘The only difference between [rape and attempted rape] is that in
 rape sexual intercourse takes place whereas in
 attempted rape it does not, although there has to be
some act which is more than [merely] preparatory to
sexual intercourse.
o  MR is identical for both offences
 an intention to have intercourse + a knowledge of or
recklessness as to the woman's absence of consent.
o No question of attempting to achieve a reckless state of mind
arises; the attempt relates to the physical activity; mental
state of D is the same.’
HK position: To Shiu Fai [2009] CFA
 T charged with attempting to commit s.384(1), SFO (Cap. 571):
 Circumstance: ‘… info was false or misleading …’
Held:
 CFA adopted reasoning of Khan and A-G’s Reference (No.3/92)
 CFA held that T liable for attempt
o if T was ‘reckless’ as to required circumstance
o T intended to carry out the conduct
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Going further (not even circumstance  consequence)
A-G’s Reference (No. 3/92) EngCA proposed a different test:
 Attempted aggravated arson (CD by fire): s.60(2) :
o Damage by fire (consq) + intend / reckless as to damage
o aggravating background  Intend / reckless as to endangering
life

EngCA stated as a general principle: ‘D, in order to be guilty of an
attempt,
o In one of the states of mind required for the commission of the
full offence (‘recklessness’ as to ‘endangering life’ suffices (as
ulterior intent)) and
o ‘intending’ to supply what was missing from the
completion of the offence.’ (Damage property)
What can D ‘supply’ to commit an offence?
 conduct (eg. rape : sexual intercourse): D tried to perform this conduct
 consequence (eg. CD/ arson : damage (by fire)): attempt requires
proof D ‘tried’ to bring about this consequence
o R v. Yu Fung Hi [1996] - Apply the strict approach (even
substantive offence reckless suffice, attempt requires ‘intended’
consequence)
Problems with A-G’s Ref
 But if apply A-G’s Ref (No.3/92) literally  could (wrongly) allow
conviction of attempt based on
o ‘Recklessness’ as to consequences?
(if recklessness as to consequence suffices for full offence)
o ‘Strict liability’ as to circumstances?
(if full offence imposes strict liability as to circumstances)
 Some HK cases have held this to be so in relation to
attempts to import/export unmanifested goods
 Same test as the offence (did not know not defence,
reasonable diligence)
o R v Lei Sou Wah (1996 HKCA)
o Kan Chung Hung (2001 HKCFI)
 How can these states of mind be said to satisfy statutory requirement of
‘intending’?
2. AR : ‘Does an act which is more than merely preparatory to the commission of
the offence’
Act
Includes an omission, if substantive offence requires proof of a consequence
resulting from an omission - but not otherwise
More than
Gullefer [1990]
merely
 G jumped onto a dog racing track during a race, hoping race would be
preparatory
cancelled and give him opportunity to go back to the bookmaker and
demand $ he placed
 Eng CA held: G not proved to have done a ‘more than merely preparatory’
act, given that he has not done the following acts:
o Race not cancelled
o He re-presented his betting skip to the bookmaker
o He joined the queue for that purpose
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

Two-step process:
1. Judge: to decide ‘whether there is evidence upon which a jury could
reasonably come to the conclusion that [G] had gone beyond the
realm of mere preparation and had embarked upon the
actual commission of the offence.’ (cf. still in the stage of
preparation)
2. Jury: to decide whether [G] did in fact go beyond mere preparation’:
this ‘depends on the facts’
NO general test, depends on particular facts
Jones [1990] (Eng CA)
 J convicted of attempted murder
 J got into V’s car and pointed a loaded sawn-off shot gun at V, still needed
to:
o Remove safety catch
o Put his finger on trigger
o Pull trigger
 CA held: sufficient evidence to leave issue to jury
HKSAR v. Wong Ka Po [2002 HKCA]
 Theft of a vehicle, D2 got onto the vehicle, switched off the engine, left with
D3
 Distinguished from Gullefer: The crime had been embarked upon
once the "acts in contemplation", such as the reconnaissance of the scene
and the obtaining of a new number plate for the trailer had been
accomplished (more than preparatory)
IMPOSSIBILITY FOR THE OFFENCE INCITED / CONSPIRED AT/ ATTEMPTED TO BE COMMITTED
‘Factual’ impossibility
‘Legal’ impossibility
eg. intended victim of shooting is already dead
eg. Wife ‘incites’ Husband to
 cf. failure due to intervention: X was prevented by a law
commit ‘adultery’: but no such
enforcement official
offence
 cf. inadequate means: the poison is not strong enough to
kill
Even mistaken belief it is an
offence
At common law, ‘factual impossibility’ potentially prevented
At common law, ‘legal
impossibility’ prevents liability
liability
 Applying Nock (conspiracy), Fitzmaurice (apply Nock to
incitement)
 D incited a specific act (impossible at the time and at all
times thereafter)  ✖ liability
 D incited a general act (one particular instance of
impossibility would not necessarily mean that their general
object could never achieved)  ✔ liability
Law relating to factual impossibility can be reversed by statute
o Conspiracy: s.159A(2): ‘(b) would do so but for the
existence of facts which render the commission of the
offence or any of the offences impossible, he is guilty of
conspiracy to commit the offence or offences in question.’
o Attempt: s.159G(2): ‘A person may be guilty of attempting
to commit an offence to which this section applies even
though the facts are such that the commission of the
offence is impossible.’
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